23 Fla. L. Weekly Supp. 963a
Online Reference: FLWSUPP 2309PEREInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Summary judgment based on exhaustion of benefits is precluded by evidence that insurer paid bills for unlawful medical services and may have made payment in bad faith
DORAL HEALTH CENTER, P.A. (A/A/O SARA M. PEREZ), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 13-2176 SP 24. February 5, 2016. Donald J. Cannava, Judge. Counsel: Ryan Peterson, Hialeah, for Plaintiff. Ari Niemand, House Counsel, Miami Gardens, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT AND MOTIONFOR SANCTIONS PURSUANT TO FLA. STAT. 57.105RE: BENEFITS EXHAUSTION
COMES NOW, THE COURT, and after hearing the argument of counsel and reviewing the evidence filed by both parties on the above motion, ORDERS AND ADJUDGES as follows:
1. In this lawsuit for recovery of Personal Injury Protection Benefits, the Defendant suggests that it has paid $10,000.00 of medical benefits, and contends that benefits are exhausted.
2. The Defendant filed records in support of the Motion which indicate that the Defendant has used part of the $10,000.00 to pay for therapeutic exercises billed as CPT code 97110 by another medical provider, which were rendered by a licensed massage therapist.
3. The Plaintiff filed the affidavit of United Automobile Insurance Company investigator Roberto Colombie from another case, who held himself out to be a licensed massage therapist and expert witness. That affidavit indicated that United’s position was that generally, CPT code 97110 is an unlawful medical service when rendered by a massage therapist because it is beyond the scope of a massage therapist’s license.
4. The Court finds that the affidavit of Mr. Colombie creates an issue of fact as to whether the insurance company has paid for an unpayable medical bill for which the insured would not be responsible under Fla. Stat. 627.736(5)(b). See Coral Imaging v. GEICO, 955 So. 2d 11 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a] (the statute “must be read as prohibiting [the insurer] from paying the untimely and improperly billed charges . . . as violative of § 627.736(5)(b) . . . the payment by [the insurer] must be characterized as ‘gratuitous’ and should not be considered as having been made against the limits of the PIP policy.”
5. Additionally, the affidavit creates an issue of fact as to whether the payment was made in bad faith. Benefits may be exhausted “absent bad faith in the handling of the claim by the insurance company.” See Northwoods Sports v. State Farm Mut. Auto. Ins Co., 137 So.3d 1049, 1057 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]. The affidavit of United’s investigator and expert witness creates an issue of fact as to whether the insurance company was unreasonable in its payment of the other medical bills. See Farinas v. Florida Farm Bureau Gen. Ins. Co., 850 So.2d 555 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1023b]. (to avoid bad faith, insurer has “the duty to avoid indiscriminately settling selected claims and leaving the insured at risk of excess judgments that could have been minimized by wiser settlement practice. Whether [the insurer] satisfied each of these requirements, are questions for a jury to decide.”)
6. As such, the Court must DENY the Defendant’s Motion for Summary Judgment.
