22 Fla. L. Weekly Supp. 380a
Online Reference: FLWSUPP 2203RFRAInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where benefits were exhausted in payment of other medical providers before plaintiff filed suit, insurer is entitled to summary judgment
GABLES INSURANCE RECOVERY, INC. A/A/O ROMINA G. FRANCICCI, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 12-27349 SP 05. September 16, 2014. Wendell M. Graham, Judge. Counsel: Aimee A. Gunnells, Coral Gables, for Plaintiff. Patrick Gerace, Fort Lauderdale, for Defendant.
SUMMARY JUDGMENT FOR DEFENDANT
This cause came before the Court September 8, 2014, upon Defendant’s motion for summary judgment. Having heard argument of counsel and being otherwise fully advised in the premises, the court makes the following findings of fact and conclusions of law:
1. The above-captioned case involves a suit for personal injury protection (“PIP”) benefits.
2. On August 19, 2009, the Plaintiff’s assignor, ROMINA G. FRANCICCI, was involved in an automobile accident. Thereafter, she sought medical treatment and in that process assigned her rights to various medical providers.
3. On August 20, 2009, ROMINA G. FRANCICCI sought treatment from and assigned her benefits to Plaintiff’s predecessor in interest, All X-RAY Diagnostic Services, Corp. (“All X-Ray”).
4. On September 8, 2009, the Defendant received bills from AAA Rehab Center, Inc., for dates of service August 20, 2009, through September 4, 2009, in the amount of $4,935.10. The Defendant reduced these charges to 200% of the Medicare Part B fee schedule and the Workers’ Compensation fee schedule. After taking into account the applicable $1,000.00, deductible the Defendant paid (80% of $2,805.18) $2,244.14 to AAA Rehab Center, Inc., on October 7, 2009.
5. On September 28, 2009, the Defendant received a second set of bills from AAA Rehab Center, Inc., for dates of service September 8, 2009, through September 24, 2009, in the amount of $4,304.00. The Defendant reduced these charges to 200% of the Medicare Part B fee schedule and the Workers’ Compensation fee schedule. The Defendant paid (80% of $4,198.48) $3,358.78 to AAA Rehab Center, Inc, on October 13, 2009.
6. On October 1, 2009, the Defendant received a bill from All X-Ray for date of service August 20, 2009, in the amount of $2,475.00. The Defendant reduced these charges to 200% of the Medicare Part B fee schedule. The Defendant paid (80% of $446.54) $357.23, to All X-Ray on November 3, 2009.
7. After receiving payment, All X-Ray assigned its rights to the Plaintiff to pursue collection of the difference between what the Defendant already paid at the reduced rate of reimbursement and the amount charged.
8. The Defendant continued to receive bills from other providers covered under ROMINA G. FRANCICCI’S PIP policy with the Defendant. The Defendant continued to reduce the bills received and paid the claims as they became due.
9. On November 6, 2009, the Defendant paid $4,039.85 to AAA Rehab Center, Inc., exhausting the full $10,000.00, in PIP benefits under the subject policy of insurance.
10. On December 3, 2009, the Defendant received Plaintiff’s statutorily required Notice of Intent to Initiate Litigation for the collection of the difference between what the Defendant already paid All X-Ray at the reduced rate of reimbursement and the amount charged.
11. On December 28, 2009, the Defendant responded to Plaintiff’s Notice of Intent to Initiate Litigation by advising that in the insurer’s opinion, the PIP benefits on the subject policy had been paid in accordance with applicable law and that the benefits had been exhausted since November 6, 2009. The Defendant issued a payment of $12.99, to Plaintiff for interest and postage only.
12. Plaintiff thereafter filed suit under a breach of contract theory. Upon receipt of the Defendant’s answer and affirmative defenses the Plaintiff moved for leave to amend its Complaint to allege three (3) counts: Breach of Contract, Request for Declaratory Judgment, Breach of Implied Covenant of Good Faith and Fair Dealing. On November 13, 2013, following a hearing on Plaintiff’s motion to amend, the Court granted Plaintiff leave to file Count II — Request for Declaratory Judgment, and denied Plaintiff leave to file Count III — Breach of Implied Covenant of Good Faith and Fair Dealing. Pursuant to Count II of Plaintiff’s Amended Complaint, Plaintiff sought a declaration that the Defendant violated the law and breached the subject insurance contract by paying All X-Ray’s charges at the rate of 80% of 200% of the Medicare Part B fee schedule.
13. All bills Defendant deemed payable were paid.
14. Accordingly, there is no coverage for the Plaintiff’s claim for PIP benefits as the limits of insurance coverage available under the policy, $10,000.00 in PIP benefits, were exhausted. See, Northwoods Sports Medicine and Physical Rehabilitation, Inc v. State Farm Mutual 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]. Dr. Robert D. Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. Additionally, having found summary judgment for Defendant to be appropriate due to an exhaustion of benefits, it is no longer necessary to address Plaintiff’s pending motions. Plaintiff’s pending motions are therefor denied as moot. Accordingly, it is hereby
ORDERED AND ADJUDGED that:
Judgment is entered in favor of the Defendant and the Plaintiff shall take nothing by this action and the Defendant shall go hence without a day. The Court reserves jurisdiction to determine Defendant’s attorney’s fees and taxable costs.
