18 Fla. L. Weekly Supp. 1056a
Online Reference: FLWSUPP 1810NORT
NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 52aInsurance — Personal injury protection — Coverage — Failure to pay bill within 30 days of receipt did not constitute automatic breach of PIP contract by insurer — Exhaustion of policy limits — PIP statute does not require first in/first out order of payment of claims — Where there are no allegations of bad faith on part of insurer in paying claims on which benefits were exhausted or that parties who received those payments were not entitled to them, insurer’s motion for summary judgment as to post-suit exhaustion of benefits is granted
WELLNESS ASSOCIATES OF FLORIDA, INC. (Daniel North), Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502010SC003480XXXXSBRD. July 26, 2011. Reginald R. Corlew, Judge.
Issue certified as one of great public importance. 19 Fla. L. Weekly Supp. 52a
AFFIRMED. Certified questions answered in part. 39 Fla. L. Weekly D491a (Fla. 4DCA, 3/5/2014)
ORDER ON DEFENDANT’S MOTION FOR SUMMARYJUDGMENT AS TO EXHAUSTION OF BENEFITS
THIS CAUSE having come before the Court upon Defendant’s Motion and the Court having heard argument conducted on July 14, 2011 finds as follows:
BACKGROUND
1. The operative complaint is Plaintiff’s Amended Complaint with certificate of service date October 19, 2010 (Docket entry #33). The Amended Complaint alleges a single count for damages for no-fault benefits. Paragraph 17 alleges Defendant did not make payment of all of the no-fault benefits due under the policy within thirty days as required by Florida Statute Section §627.736(4)(b). Plaintiff also alleges Defendant acted in Bad Faith, manipulated or otherwise acted improperly in reducing the Plaintiff’s bills.
2. Defendant’s Answer to the Amended Complaint denies these allegations. Defendant raises a Seventh Affirmative Defense alleging payments to Plaintiff on September 9, 2008 in the amount of $879.44 and; thereafter exhaustion of $10,000 in Person Injury Protection Benefits and $5,000 in Medical Payments Coverage Benefits by making post-suit payments to health care providers other than Plaintiff and exhausting benefits on July 9, 2010.
3. Defendant’s Motion for Summary Judgment as to Exhaustion was filed under certificate of service of July 21, 2010 [Docket entry #10], within thirty days after post-suit exhaustion and prior to the operative amended complaint. Defendant’s Affirmative Defense and the Motion for Summary Judgment is supported by Affidavit of Defendant’s claim representative as to the amounts of coverage and exhaustion. (Docket Entry #11).
4. Plaintiff has filed neither affidavits nor depositions in opposition to Defendant’s Motion for Summary Judgment. Plaintiff presented the Court with a Memorandum of Law in Opposition to the Summary Judgment dated the same date as the hearing and does not appear on the docket as of July 20, 2011.
ANALYSIS
5. The Amended Complaint does not contain allegations as to any breach as to the stand alone medical payments coverage which is not governed by statute.
6. Defendant cites, Dr. Robert D. Simon, MD, PA A/A/O Eric Hon v. Progressive Express Insurance Company, 904 So.2d 449 (4th District May 2005; Rehearing Denied July 12, 2005; Jurisdiction Rejected by the Supreme Court of Florida, SC05-1459, January 19, 2005) [30 Fla. L. Weekly D1156b] wherein the Supreme Court held “we decline to create a requirement that an insurance company set aside a “reserve” fund for claims that are reduced or denied.” The analysis by the Fourth District observes that a “reserve” requirement would delay all potential payments to service providers until the statute of limitations has expired and would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP Statutes “prompt pay” provisions. The Fourth District also observed “it is also a prerogative of insurance companies to pay, reduce, or deny claims.”
7. Turning to the claim for No-Fault benefits, Plaintiff argues at the hearing [page 5 of the transcript] that subsection 4(b) of the PIP statue mandates a FIFO (first in/first out) order of payment and further, that Defendant has to pay the amount charged unless they have reasonable proof that they are not responsible to pay the amount billed. Plaintiff further argues [page 6 of the transcript] that since Defendant “underpaid” the claim then it breached the contract, period.
8. Plaintiff further argues [page 8 of the transcript] pursuant to a case called State Farm Fire and Casualty Company v. Lee, 678 So. 2d 818 (FL. 1996) [21 Fla. L. Weekly S335a] that the breach of contract in a PIP case occurs when the thirty days runs out. Plaintiff argues that thirty days after the bill was received, if it was not paid in the amount billed then the contract was breached, period.
9. In response to Plaintiff’s assertion of an automatic breach after thirty days, Defendant argues the Florida Supreme Court case of United Automobile Insurance Company v. Rodriguez, 808 So.2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a] for the proposition that an insurers’ failure to pay PIP benefits within thirty days after receiving written notice of a covered loss does not forever bar it from contesting the claim.
10. The Rodriguez decision involved two consolidated cases under review by the Florida Supreme Court. In Rodriguez, the bills were unpaid and Ms. Rodriguez sued and moved for Summary Judgment on the grounds that the insurer only had thirty days from the date of receipt of the bills to obtain a medical report constituting “reasonable proof” that the treatment was not reasonable, related or necessary and that absent same, the insurer could not defend on that basis. Similarly, in the consolidated matter of Perez (contained within the Rodriguez decision), Ms. Perez moved for summary Judgment on the basis that failure to obtain such proof within the statutory period means the insurer must pay the bills, in their entirety, at the expiration of the thirty day period.
11. The Florida Supreme Court, in analyzing the Third District Court of Appeal ruling observed:
“Thus, according to the district court, where an insurer improperly fails to pay a claim within thirty days, the insurer must pay the claim, i.e. the insurer can no longer contest the claim. The insurer also is liable for the statutory interest penalty. This holding violates the plain language of the law.”
12. Therefore, based upon this clear and unequivocal language by the Florida Supreme Court, this Court rejects Plaintiff’s argument that the insurer is deemed to have somehow automatically violated or breached the statute as alleged at paragraph 17 of the Amended Complaint. In fact, the record demonstrates that Defendant paid Plaintiff, prior to this law suit, the sum of $879.44 on September 9, 2008.
13. Turning now to the Fourth District decision in Simon Plaintiff argues [page 16 of the transcript] that the Simon case has no applicability because it was filed in the name of the wrong party. However, review of the Court’s decision in Simon does not indicate any indication or basis by the Fourth District Court of Appeal that the Plaintiff was indeed not the proper party. Additionally, the Court has reviewed subsection 4(b) of the no-fault statute and nowhere does the statute require a “first in/first out” order of payment. It is clear that the Plaintiff did not purchase the contract of insurance but merely stands in the shoes of the insured. The insured has gained the full benefit of its bargain in that Defendant paid out all of the no-fault (and medical payments coverage) benefits. Although the Simon case does contain an observation that “Simon does not contend that the denial or reduction of its claim was in bad faith, or that Progressive had manipulated, or acted improperly . . .” There is no record of intentional conduct to manipulate or gain an unfair advantage. Moreover, Plaintiff has not come forth with any record evidence that the other parties who received payment were not entitled to such payment. For example, there was no allegation or record evidence by Plaintiff that the other parties who received the exhausted benefits involved in fraudulent, or even improper or questionable conduct in treating the patient and billing the Defendant for same. Although this Court is mindful of the recent decision of Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 2011 WL 1878148 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] there was no controlling law in effect when Defendant paid Plaintiff’s bill in September of 2008. Virtual Imaging Services, Inc. v. United Services Automobile Association, 18 Fla. L. Weekly Supp 491a (Miami-Dade; J. Schwartz February, 2011); Pembroke Pines MRI, Inc. v. USAA Casualty Insurance Company, 17 Fla. L. Weekly Supp 479a (Broward County; J. Lee March, 2010).
Accordingly, it is hereby Ordered and Adjudged that Defendant’s Motion for Summary Judgment is GRANTED.
