22 Fla. L. Weekly Supp. 1097a
Online Reference: FLWSUPP 2209DONNInsurance — Personal injury protection — Deductible — Proper formula for payment of PIP claim requires that statutory reductions be applied to billing amount before deductible is subtracted from resulting amount
BETHESDA MEMORIAL HOSPITAL (a/a/o Markeith Donnally), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-4553 COCE (53). April 14, 2015. Robert W. Lee, Judge. Counsel: Leandro Carvalho, Labovick Law Group, Palm Beach Gardens, for Plaintiff. J. Greg Lahey, Plantation, for Defendant.
FINAL JUDGMENT ON SUMMARYDISPOSITION IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on April 13, 2015 for hearing of the Plaintiff’s Amended Motion for Summary Disposition, at which the Court considered the Defendant’s Motion for Summary Disposition pursuant to Rule 7.135,1 and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background. The sole remaining issue in this case is whether the insurer properly applied the deductible under the policy. The insurer calculated the amount of Plaintiff’s bills pursuant to the statutory fee schedule,2 and then deducted the deductible from that resulting amount. The Plaintiff urges that this was error, as the insurer was supposed to have deducted the deductible from that amount, and then calculated the amount due from that resulting amount. Under Plaintiff’s calculations, this would result in an additional $200.00 due to Plaintiff.3
Analysis. The parties concede there is no DCA controlling authority on this issue. The decisions of the trial court are split, and the one circuit appellate court that has considered this issue agreed with the insurer’s position. See Garrison Prop. & Cas. Ins. Co. v. New Smyrna Imaging, LLC, Case No. 13-03-AP (18th Cir. App. 2015) [23 Fla. L. Weekly Supp. 708a].4 The Court has reviewed and carefully considered the conflicting decisions, both positions of which are legally defensible. However, the Court believes the analysis set forth in the New Smyrna Imaging case to be better reasoned. As a result, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Disposition is hereby GRANTED and the Plaintiff’s Amended Motion for Summary Disposition is DENIED. As the parties have advised the Court that this is the only remaining issue in this case, judgment is hereby entered in favor of the Defendant. The Plaintiff shall take nothing, and the Defendant shall go hence without day. The Court reserves jurisdiction to consider any issue of attorney’s fees and costs.
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1Pursuant to this Court’s Order of May 16, 2014, the Court, pursuant to rule 7.020(c), retained rule 7.135 when it allowed the parties to invoke the Rules of Civil Procedure.
2The parties do not dispute the fee schedule applicable.
3Pursuant to the stipulation submitted by the parties, the Defendant does not dispute this calculation — rather, the Defendant disputes whether the calculation should be made. In essence then, if the Court were to enter judgment for the Plaintiff, the Defendant concedes it should be for $200.
4As the appellate opinion appears not to have yet been published, a copy of the decision is attached to this judgment and considered a part hereof.
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