20 Fla. L. Weekly Supp. 862a

Online Reference: FLWSUPP 2009LAUZInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer wrongly paid medical bills in accordance with permissive reimbursement limitation of section 627.736(5)(a)2.f despite fact that policy obligated it to pay 80% of reasonable medical expenses, insurer’s exhaustion of benefits will not shield insurer from having to pay in excess of policy limits

GEICO INDEMNITY COMPANY, Appellant, vs. GABLES INSURANCE RECOVERY, INC., a/a/o RITA M. LAUZAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County. Case No. 12-069 AP. L.T. Case No. 10-000985 SP 26 (03). June 25, 2013. An Appeal from the County Court in and for Miami-Dade County, Florida, Gonzalez-Paulson, J. Counsel: James K. Clark, and Rafael T. De La Grana, of Clark, Robb, Mason Coulombe & Bushman, for Appellant. G. Bart Billbrough, of Billbrough & Marks, P.A., for Appellee.

QUASHED. 39 Fla. L. Weekly D2561a

(Before SAMPEDRO-IGLESIA, POOLER and SANTOVENIA, JJ.)

(SAMPEDRO-IGLESIA, J.) We are asked by Geico to decide two issues in this appeal. First, whether a trial court can require an insurer to pay PIP benefits when all benefits under the policy have been exhausted. And, second, whether the trial court’s reliance on Geico v. Virtual Imaging was proper as that case was wrongly decided and the issue is subject to reconsideration by the Florida Supreme Court. We answer the first question in the affirmative, under the circumstances of this case. And, we answer the second in the affirmative because the trial court must following binding district court decisions.

In this case, Geico paid medical bills in accordance with 80% of 200% of Medicare Part B, despite the fact that its policy obligated it to pay 80% of “reasonable” medical expenses, and it is undisputed the Geico did not elect within its policy the permissive reimbursement limitations that the legislature added to the 2008 PIP Statute, i.e., §627.736(5)(a)2.f. It is clear from the record that the medical bills at issue were submitted timely and at a point in time when ample benefits were available for Geico to pay the subject medical bills in accordance with its promise to its insured.

In Kingsway Amigo Ins. Co. v. Ocean Health, Inc. (a/a/o Belizaire Gomez), 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], the Fourth District held that an insurer must elect in its policy the permissive reimbursement limitations set forth in §627.736(5)(a)2.f., Fla. Stats. (2008) before it can avail itself of those limitations. Thereafter, the Third District, relying upon Kingsway followed suit in GEICO Indem. Co. v. Virtual Imaging Svcs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Virtual I”), GEICO Gen. Ins. Co. v. Virtual Imaging Svcs., Inc. (a/a/o Maria Tirado), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] (“Virtual II”).

It is undisputed that Geico’s policy promised to pay 80% of its insured’s “reasonable” medical bills, without any election of the alternative method set forth in §627.736(5)(a)2.f.

Geico argues that, despite the fact that it may have been wrong in paying in accordance with the permissive §627.736(5)(a)2.f. reimbursement limitations, without having elected to do in its policy, its subsequent exhaustion of the policy limits shields it from having to now pay in excess of the policy limits.

We are not persuaded by Geico’s argument. Geico’s payment was wrongful, because instead of paying in accordance with the clear and unambiguous language of its policy (its contractual promise to its insured to pay 80% of “reasonable” medical expenses), Geico chose to “roll the dice” on the permissive provision in §627.736(5)(a)2.f. The fact that Geico may have believed that its payment was made in accordance with the 2008 PIP Statute is of no import. The fact remains that Geico promised its insured that it would pay 80% of “reasonable” medical expenses and it broke that promise on the mistaken belief that it could avail itself of the permissive “safe harbor” reimbursement limitations in §627.736(5)(a)2.f.

The law is clear that insurance contracts are construed in accordance with the plain language of the policy. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. And, insurance policies should be construed in a manner most favorable to the insured where there is any ambiguity in the policy. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla. 2007) [32 Fla. L. Weekly S811a]; Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla. 2002) [27 Fla. L. Weekly S499a]. An insurer may not promise one thing and deliver another.

We find this case most analogous to Coral Imaging Svcs. v. Geico Indem. Ins. Co., 955 So.2d 11, (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a]. There, the Third District held that Geico was required to pay in excess of its $10,000 limit of liability because it had paid bills to a medical provider who had submitted those bills untimely. The court found that those payments were gratuitous and, thus, the fact that Geico exhausted benefits (which included those payments) did not shield it from having to pay above its limits of liability.

Here, Geico wrongly paid the Plaintiff’s medical bills in accordance with the §627.736(5)(a)2.f. reimbursement limitations despite the fact that it had promised to pay its insured’s medical bills at 80% of a “reasonable” amount. Geico took the risk that the permissive §627.736(5)(a)2.f. safe harbor was available to it — and it was not. Therefore, Geico is in the fairest position to suffer the consequences of its mistaken decision.

Simply put, an insurer’s exhaustion of PIP benefits, in and of itself does not shield the insurer from liability for benefits that exceed the policy limits. The Court notes that a number of instances warrant the imposition of liability on an insurer where policy benefits are wrongly exhausted and this is one such instance. See Pembroke Pines MRS, Inc. (a/a/o Gabriel Garcia) v. Garrison Prop. & Cas. Ins. Co., Case No. 09-10942 COE 55 (Broward Cty. Ct., March 22, 2011) [18 Fla. L. Weekly Supp. 558a](denying insurer’s motion for summary judgment on exhaustion defense where insurer denied bill based on Box 31 defense and Fourth District ultimately rejected insurer’s position on Box 31 issue); GEICO v. Emergency Physicians of Central Fla., Case No. 06-27-AP (Fla. 18th Jud. Cir., April 22, 2008) [15 Fla. L. Weekly Supp. 682b](affirming summary judgment in favor of insured where benefits were exhausted during GEICO’s continued defense of allegedly defective Demand Letter which was held to be substantially compliant); Progressive Exp. Ins. Co. v. South Fla. Inst. of Medicine, Inc. (a/a/o Halil Hawkeye), 14 Fla. L. Weekly Supp. 520a (Fla. 11th Jud. Cir., April 11, 2007)(affirming denial of summary judgment to Progressive on exhaustion defense where, at time of final judgment, Progressive stipulated to RRN and had no reasonable basis to deny bills while exhausting benefits); DCI MRI, Inc. (a/a/o Endong Zhao) v. State Farm Mut. Auto. Ins. Co., Case No. 2009 SC 002755 SB (Palm Beach Cty. Ct., November 5, 2010)(rejecting exhaustion defense and granting summary judgment in favor of insured where State Farm paid in accordance with permissive reimbursement limitation in §627.736(5)(a)21. and exhausted PIP benefits during suit); Virtual Imaging Services, Inc. (a/a/o Aurora Mitev) v. USAA Cas. Ins. Co., Case No. 07- 12468-SP-23 (1)(Miami-Dade Cty. Ct., March 12, 2012) [19 Fla. L. Weekly Supp. 588a](rejecting exhaustion defense where USAA did not pay medical bills in order received and exhausted benefits to detriment of provided who earlier submitted bills); Y.H. Imaging, Inc. v. Allstate Prop. & Cas. Ins. Co., Case NO. 11-011193 COSO 60 (Broward Cty. Ct., November 7, 2012)(granting summary judgment to plaintiff and rejecting exhaustion defense where Allstate paid bills out of order and depleted PIP benefits to detriment of provider who timely submitted earlier bills).

We find these rulings to be persuasive and affirm the trial court’s ruling with respect to Geico’s purported “exhaustion” defense.

As for the second issue, the law — as it stands — is the law that binds this Court and is the law in effect at time of disposition of this appeal. Therefore, Geico’s argument that this Court should ignore Kingsway Amigo Ins. Co. v. Ocean Health, Inc. (a/a/o Belizaire Gomez), 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and its progeny, including in this district GEICO Indem. Co. v. Virtual Imaging Svcs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Virtual I”), GEICO Gen. Ins. Co. v. Virtual Imaging Svcs., Inc. (a/a/o Maria Tirado), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] (“Virtual II”) is not well taken. We are bound by district court decisions.

Geico argues that this Court should not follow binding precedent because, according to Geico, those cases were wrongly decided. This we cannot — and will not — do. The law is well settled that the law in effect at the time an appeal is decided is the governing law. See Tahiti Beach Homeowner Assn., Inc. v. Pfeffer, 52 So.3d 808 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D75a]; Nash v. General Motors Corp., 734 So.2d 437 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1031a]. Nor are we required to stay this appeal or defer our ruling until some indefinite time in the future when the Florida Supreme Court may or may not agree with Geico’s position on the issue decided in Kingsway, et al.

Thus, we affirm the trial court’s ruling based upon, Geico v. Virtual Imaging. The trial court was correct in relying on binding precedent and any argument to the contrary is disingenuous at best.

We will not countenance an insurer’s voluntary breach of the plain language of its policy and then allow the insurer to benefit from its own breach. It is a well settled principle of law that a party cannot claim a benefit that arises as a result of its very own breach. Accordingly, the case is affirmed on both issues.

The final judgment is AFFIRMED in all respects. The Appellee’s Motion for Appellate Attorney’s Fees is GRANTED and remanded for the trial court to fix an amount. (POOLER, J. concurs. SANTOVENIA, J., specially concurs, with opinion.)

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(SANTOVENIA, J., specially concurring) While the Appellant’s exhaustion of benefits argument might otherwise have been dispositive of this appeal, Appellee argues that the record below reflects that GEICO, after raising the exhaustion of benefits argument below, actually argued to the trial court that the exhaustion of benefits issue was not properly before the court when the trial court ruled on Appellee, Gables Insurance Recovery, Inc.’s Motion for Reconsideration. Accordingly, Appellant cannot now argue error on that point before this appellate court. See generally Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) [35 Fla. L. Weekly S137a]; Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) [30 Fla. L. Weekly S763a]; Santiago v. Abramovitz, 96 So. 3d 1091, 1093 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2132a]; USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1934a]; Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D967a]; Kozich v. Hartford Ins. Co., 609 So. 2d 147, 148 (Fla. 4th DCA 1992); and United Servs. Auto. Ass’n v. Porras, 214 So. 2d 749, 750 (Fla. 3d DCA 1968).

I would affirm on the basis of the case law which Appellant does not contest applied below (rather, Appellant now argues that the applicable cases were incorrectly decided). See GEICO General Insurance Co. v. Virtual Imaging Services, Inc., 90 So. 3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b], GEICO Indemnity Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] and Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

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