20 Fla. L. Weekly Supp. 934a

Online Reference: FLWSUPP 2009FLYNInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Insurer is entitled to summary judgment in action brought by medical provider challenging insurer’s payment of reduced amounts based on PPO agreement where benefits payable under policy were exhausted before suit was filed

ADVANCED DIAGNOSTIC RESOURCES, (A/A/O PATRICIA FLYNN), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502011SC005456XXXXNB. July 1, 2013. Honorable Laura Johnson, Judge. Counsel: Melissa Lewis, Gordon & Doner, P.A., Davie, for Plaintiff. Reuven T. Herssein, Herssein Law Group, North Miami, for Defendant.

[Editor’s Note: Motion to Strike Pending]

ORDER GRANTING USAA’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on May 13, 2013, for hearing of USAA Casualty Insurance Company’s (“USAA”) Motion for Final Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, the Court finds as follows:

The Issue before this Court is whether benefits properly exhausted.

Findings of Fact: On April 2, 2010, Patricia Flynn allegedly sustained personal injuries related to the operation, maintenance or use of a motor vehicle in the State of Florida. An existing contract which was in effect on the date of loss at issue obligated USAA to provide automobile insurance coverage to Patricia Flynn. Said contract provided Personal Injury Protection (“PIP”) coverage up to Ten Thousand Dollars ($10,000.00), and Five Thousand Dollars ($5,000.00) in Medical Payment coverage. Advanced Diagnostic Resources (“Plaintiff”), a provider of MRI services, submitted a CMS 1500/HCFA form to the USAA for date of service April 2, 2010, which included CPT Code 72141. Upon receipt of said bill, USAA timely responded by issuing an Explanation of Reimbursement on April 28, 2010 and reimbursed the Plaintiff pursuant to a PPO (i.e. preferred provider organization) agreement between Plaintiff and Three Rivers Provider Network. USAA continued to make good faith payments to the claimant’s medical providers, as Patricia Flynn continued treatment. On January 26, 2011, USAA issued payment to one of Patricia Flynn’s medical providers which exhausted all PIP benefits available under the policy of insurance. On February 8, 2011, all Medical Payments benefits available under the policy of insurance were exhausted. On June 2, 2011 — almost four months after PIP and Medical Payments benefits had exhausted — Plaintiff filed the instant action seeking reimbursement for the claim that was reimbursed pursuant to a PPO agreement.

Conclusions of Law: Florida law is well established that an insurer is not responsible for payment of any further benefits once PIP and Medical Payments benefits have been exhausted under the policy. In Richard A. Sheldon, D.C., (a/a/o Travis Baliel) v. United Services Automobile Association, 2010 Fla. App. LEXIS 20245; 36 Fla. L. Weekly D23a (Fla. 1st DCA 2010), the First District Court of Appeals stated, “Florida courts have established that, once an insurer has paid out the policy limits to the insured (or to various providers as assignees), it is not liable to pay any further PIP benefits, even those that are in dispute. See Simon v. Progressive Express Insurance Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. Plaintiff cannot gain more from the insurance company than the contractual benefit amount. See Progressive American Insurance Company v. Stand-Up MRI of Orlando a/a/o Isaac Eusebio, 2008 Fla. App. Lexis 10525 at *2 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; see also Allstate v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979); GEICO v. Robinson, 581 So.2D 230 (Fla. 3rd DCA 1991); Atkins v. Bellefonte Insurance Co., 342 So.2d 837 (Fla. 3rd DCA 1977); Dixie Insurance Co. v. Lewis, 484 So.2d 89 (Fla. 2nd DCA 1986). Thus, the Third, Fourth and Fifth District Courts of Appeal are in agreement that when benefits are exhausted, the insured and/or assignor has no further interest in the contract. To hold otherwise would create additional coverage and make USAA responsible for more than which it was obligated by the policy of insurance. See Simon, 2005 4th DCA, at 449-450; see also Stand Up MRI, 2008 5th DCA, at 7-8; Millennium Diagnostic, 2007 11th Jud. Cir. Ct., at 2, cert. denied, 2008 3d DCA LEXIS 10301, at 1; MTM Diagnostic, Inc. etc., v. State Farm Mutual Auto. Ins. Co., 13th Judicial Circuit, Hillsborough County, Case No. 00-238-X (November 20, 2000) [9 Fla. L. Weekly Supp. 581e]. USAA made timely and orderly payments to medical providers that allegedly rendered treatment to Patricia Flynn, resulting in an undisputed exhaustion of benefits and, “in the absence of a showing of bad faith, a PIP insurer is not liable for benefits once benefits have been exhausted.” See Stand Up MRI, 2008 5th DCA, at 6; MRI Associates of Florida, Inc. vs. United Services Automobile Association, 16 Fla. L. Weekly Supp. 973a (Fla. 17th Jud. Cir. August 11, 2009).

Moreover, if benefits are exhausted after suit is filed, but before the suit is served on the insurer, the suit for benefits may not go forward, because the insurer has met its obligation under the contract to pay the policy amount. See Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a].” In this case, benefits exhausted almost four months prior to Plaintiff filing suit against USAA.

There is no requirement that an insurance company set aside a reserve fund for claims that are reduced or denied. See Dr. Robert D. Simon, MD., P.A. a/a/o Eric Hon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; see also Progressive Express Insurance Company v. Millennium Diagnostic Imaging Center, Inc. a/a/o Alfonso Taboada, 14 Fla. L. Weekly Supp. 938a (Fla. 11th Jud. Cir. July 19, 2007), cert. denied, 2008 Fla. App. Lexis 10301 at *1, 33 Fla. L. Weekly D1742b (Fla. 3d DCA July 9, 2008); Stand Up MRI, 2008 5th DCA, at *4; Chambers Medical Group, Inc. v. Progressive Auto Pro Ins., 13 Fla. L. Weekly Supp. 367a (Fla. 13th Jud. Cir. December 16, 2005) (an insurer has no duty to escrow funds pending the resolution of a contested claim); B&D Chiropractic Center Inc. a/a/o Lina Yepes v. Progressive Express Ins. Co., 15 Fla. L. Weekly Supp. 334a (Fla. 17th Jud. Cir. November 6, 2007). If there was, “it would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers . . . This would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s “prompt pay” provisions.” See Stand Up MRI, 2008 5th DCA, at *4 (citing Simon, 2005 4th DCA, at 450).

One of the obligations of an insurance company is to attempt to settle as many claims as possible. See Simon, 2005 4th DCA, at 450 (citing Farinas v. Florida Farm Bureau General Ins. Co., 850 So. 2d 555 (Fla. 2003) [28 Fla. L. Weekly D1611b]). “It is also a prerogative of insurance companies to pay, reduce, or deny claims.” See Id at 450. In Burress v. State Farm Ins. Automobile Co., the court held that a Plaintiff imposes a continuing, contractual obligation upon the insurer to satisfy claims by continuing to incur medical expenses until the exhaustion of the policy limits. 13 Fla. L. Weekly Supp. 903b (13th Jud. Cir. June 16, 2006).

Additionally, this Court finds no bad faith on the part of USAA which might require it to set aside disputed amounts as USAA correctly reimbursed Plaintiff pursuant to a valid PPO agreement between Plaintiff and Three Rivers Provider Network. Further, (although not the facts before this Court,) even if a court was later to determine that reimbursement pursuant to a valid PPO agreement is improper, this Court would not be able to hold that USAA acted in bad faith because at the time USAA reimbursed the Plaintiff’s claim there would not have been binding legal authority holding that reimbursement pursuant to a PPO agreement was improper. Please see DPI of North Broward, LLC, (a/a/o John Shutowick) v. USAA, CASE NO. 10-05075 COCE 53, Broward County Court, Judge Robert Lee (February 1, 2011) [18 Fla. L. Weekly Supp. 492a] (“Bad faith does not exist when an insurer takes a legal position, relying upon the status of the law at that time, when there is no binding authority stating otherwise.”); see also Virtual Imaging Services, Inc., (a/a/o Yudi Vigoreaux) v. USAA, CASE NO. 10-7543 SP 23 (2), Miami-Dade County Court, Caryn Schwartz (February 2, 2011) [18 Fla. L. Weekly Supp. 491a; rehearing denied 18 Fla. L. Weekly Supp. 1042a]; Pembroke Pines MRI, Inc. (a/a/o Jack Paris) v. United Services Automobile Association, CASE NO. 09-09458 COCE 51, Broward County Court, Judge Martin Dishowtiz (April 11, 2011) [18 Fla. L. Weekly Supp. 613a]; Pembroke Pines MRI, Inc. (a/a/o Coleen Carcelli) v. United Services Automobile Association, 10-08138 COCE 54, Broward County Court, Judge Lisa Trachman (April 8, 2011) [18 Fla. L. Weekly Supp. 1175a].

Thus, taking into account the holdings from the Third, Fourth, and Fifth District Courts of Appeal, because USAA’s PIP policy limit in this case is $10,000.00, and Medical Payments policy limit is $5,000.00, payments made on behalf of Patricia Flynn exhausted all PIP and Medical Payments benefits, and Plaintiff’s interest is extinguished.

As noted in Stand-up MRI, supra, “. . . The Defendant did nothing wrong here. They were under a contract to the insured for a limited amount of benefits. They paid that amount in toto. They are not responsible for the insured’s over-use of the policy. The Defendant did not gain anything out of their actions. They fully performed their contract with the insured. It is to the insured that the assignees should look for any additional payments.”

Accordingly, Final Judgment in this case is hereby entered in favor of the Defendant, USAA Casualty Insurance Company.

The Plaintiff shall take nothing in this action, and the Defendant shall go hence forth without day.

The Court reserves jurisdiction to determine and award reasonable attorney’s fees and costs.

* * *