22 Fla. L. Weekly Supp. 630a
Online Reference: FLWSUPP 2205GUARInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — In absence of bad faith, post-suit exhaustion of benefits absolves insurer from responsibility to pay otherwise valid claim
VIRTUAL IMAGING SERVICES, INC., a/a/o ELIZABETH DE LA GUARDIA, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No 10-17738-SP-23 (5). November 24, 2014. Nuria Saenz, Judge. Counsel: Joseph Littman, The Greenspan Law Firm, Boca Raton, for Plaintiff. George Milev, Adams & Diaco, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS MATTER having come before the Court on October 28, 2014 on Defendant’s Motion for Summary Judgment based on post-suit exhaustion of PIP benefits, the parties having presented arguments through counsels, and the Court being fully advised in the premises hereby,
FINDS, ORDERS and ADJUDGES as follows:
1. This is a PIP lawsuit based on an alleged breach of automobile insurance contract.
2. Plaintiff, a diagnostic services provider, filed the lawsuit as an assignee of Elizabeth De La Guardia.
3. At the time of the automobile accident at issue, Elizabeth De La Guardia was covered under a policy of automobile insurance issued by Defendant which provided $10,000.00 in PIP benefits for reasonable, medically necessary and related treatment of Elizabeth De La Guardia, with a $1,000.00 deductible.
4. On August 25, 2009 Plaintiff provided diagnostic services to Elizabeth De La Guardia in relation to injuries sustained in the subject automobile accident and submitted a bill to Defendant in the amount of $4,800.00 for two CT Scans performed on Elizabeth De La Guardia.
5. Said bill was received by Defendant on September 21, 2009 and paid at 200% of the Participating Level of Medicare Part B fee schedule, in reliance on Subsection 627.736(5)(a)2 of the applicable PIP Statute.
6. Defendant’s policy of insurance at issue did not expressly incorporate 200% of the Medicare fee schedule as a method of payment, however, at the time the Defendant made the subject payment, there was no binding case law on incorporating the 200% Medicare fee schedule as payment methodology into policies of automobile insurance.
7. Plaintiff submitted a pre-suit demand to Defendant notifying the Defendant that Plaintiff is contesting the reduction of Plaintiff’s bill and subsequently, on July 21, 2010, the Plaintiff filed the current lawsuit over the reduction of Plaintiff’s bill for date of service August 25, 2009.
8. On September 23, 2011, approximately 14 months after filing of the lawsuit, PIP benefits under the claim at issue were exhausted when Defendant paid a pre-suit demand submitted by a different medical provider under the claim, for bills received by Defendant prior to receipt of Plaintiff’s bill at issue.
9. Defendant moved to amend its Answer and Affirmative Defenses to add exhaustion of benefits as an affirmative defense and on October 3, 2011 the Court entered an Order granting Defendant’s Motion for Leave to Amend its Affirmative Defenses.
10. Subsequently, Defendant moved for Summary Judgment based on exhaustion of PIP benefits arguing that Defendant has fulfilled its contractual obligations under the PIP claim at issue and cannot be held liable for additional damages, interest or attorney’s fees.
11. It is a well established principle of law that insurance companies are not required to hold PIP benefits in reserve when they reduce or deny PIP claims. See Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b].
12. It is also a well establish principle of law that insurance companies cannot be held liable for extra contractual damages absent showing of bad faith. See Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2010) [33 Fla. L. Weekly D1746a].
13. A review of the record in the current lawsuit does not reveal anyallegations and/or showing of bad faith.
14. In addition, the First DCA has held that if an insurance company is not liable for any damages, it cannot be held liable for interest or attorney’s fees. See Sheldon v. United Svs. Auto. Ass’n, 55 So. 3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a].
15. While Stand-Up MRI and Sheldon are the only post-suit, pre-service of process exhaustion of benefits District Court of Appeal cases, the only current post-suit, post-service of process exhaustion of benefits District Court of Appeals case is the recently issued and final opinion in Northwoods Sports Medicine v. State Farm Mut. Ins. Co., 137 So. 3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a].
16. In Northwoods the 4th DCA answered in the affirmative the following question:
IN AN ACTION BY AN ASSIGNOR FOR NO FAULT INSURANCE BENEFITS FOUNDED ON A CLAIM FOR BREACH OF CONTRACT, DOES A POST-SUIT EXHAUSTION OF BENEFITS ABSOLVE THE INSURER FROM ANY RESPONSIBILITY TO PAY AN OTHERWISE VAILD CLAIM WHEN THE EXHAUSTION OCCURRED AFTER THE INSURER: (A) PAID AN AMOUNT THAT THE PROVIDER CLAIMS IS LESS THAN REQUIRED BY THE CONTRACT; (B) RECEIVED A PRE-SUIT DEMAND LETTER NOTIFYING THE INSURER OF THE MEDICAL PROVIDER’S DISPUTE; AND (C) WAS SERVED WITH THE FILED COMPLAINT?
17. The facts in Northwoods are very similar to the facts in the current lawsuit filed by Plaintiff.
18. The decision in Northwoods, the only current post-suit, post-service exhaustion of benefits District Court of Appeal opinion, is binding on this Court. “The decisions of the district court of appeal represents the law of Florida unless and until they are overruled by the Supreme Court.” Stanfill v. State, 384 So. 2d 141 (Fla. 1980).
WHEREFORE it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby GRANTED. Defendant shall hence go without a day and Plaintiff shall take nothing from this action.
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