23 Fla. L. Weekly Supp. 770b

Online Reference: FLWSUPP 2307HUMAInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where benefits were exhausted by payment made to medical provider in response to pre-suit demand letter before insurer was served with provider’s complaint, provider is not entitled to award of attorney’s fees

FOREST HILL INJURY CENTER, INC., a/a/o Juan Moreno-Humaceda, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502012SC017288XXXXMB. October 27, 2015. Honorable Sandra Bosso-Pardo, Judge.

ORDER

THIS CAUSE having come before this Court on October 9, 2015, on Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order, Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order Based on Exhaustion of Benefits and Plaintiff’s Motion for Final Summary Judgment and Attorney’s Fees and Costs, having reviewed the file, heard arguments of counsel, and the Court being otherwise fully advised in the premises finds as follows:

1. Plaintiff filed the above styled lawsuit against Defendant based on alleged breach of automobile insurance contract.

2. On or about August 9, 2012, Plaintiff, via its attorney Deitsch & Wright, P.A., issued a pre-suit demand under Fl. Stat. 627.736(10), (2012) requesting payment of underlying benefits, postage, penalty, and interest for dates of service May 10, 2010 through June 23, 2010.

3. Defendant received Plaintiff’s pre-suit demand on August 13, 2012.

4. On September 10, 2012, Defendant issued a response to Plaintiff’s pre-suit demand along with payment in the amounts of $2097.94 benefits, $287.99 interest, $209.79 penalty and $1.75 postage.

5. On September 13, 2012, Plaintiff filed suit against the Defendant.

6. Defendant was served with Plaintiff’s Complaint on October 16, 2012.

7. In addition, Plaintiff acknowledges receipt of Defendant’s payment for the pre-suit demand on September 18, 2012 in its Motion for Final Summary Judgment and attached affidavit.

8. After receipt of Defendant’s payment, Plaintiff cashed the Defendant’s draft for postage, penalty and interest in the amount of $499.53.

9. Defendant have provided record evidence that benefits were properly exhausted on September 10, 2012, which relates to the date Defendant issued its pre-suit payment to Plaintiff in this matter.

10. It is undisputed that benefits were exhausted prior to the Defendant being served with Plaintiff’s Complaint in this matter.

11. Plaintiff’s alleges that payment by Defendant after suit was filed constitutes a confession of judgment and thus attorney’s fees are now due to Plaintiff.

12. Pursuant to Sheldon v. U.S.A.A, 55 So. 3d 593 (Fla. App. lst Dist. 2010) [36 Fla. L. Weekly D23a], a Plaintiff is not entitled to attorney’s fees in the event that the Defendant exhausts benefits prior to being served with Plaintiff’s Complaint.

13. A Plaintiff can only collect attorney’s fees in the event that a judgment is rendered; however, upon exhausting benefits, a Plaintiff will never achieve a judgment so attorney’s fees can never be awarded. Id. at 596.

14. Plaintiff cannot gain more from the insurance company than the contractual benefit amount in the absence of a showing of bad faith on the part of Defendant. GEICO v. Robinson, 581 So.2d 230 (Fla. App. 3rd Dist. 1991); Allstate v. Shilling, 374 So.2d 611 (Fla. App. 4th Dist. 1979); Atkins v. Bellefonte Insurance Co., 342 So.2d 837 (Fla. App. 3rd Dist. 1977); Dixie Insurance Co. v. Lewis, 484 So.2d 89 (Fla. App. 2nd Dist 1986).

15. There is no requirement that an insurance company set aside a reserve fund for claims that are reduced or denied. Dr. Robert D. Simon, MD, PA , a/a/o Eric Hon, v. Progressive Express Insurance Company, 904 So. 2d 449 (Fla. App. 4th Dist. 2005) [30 Fla. L. Weekly D1156b]. If there was, it would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers . . . . This would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s prompt pay provisions. See id. One of the obligations of an insurance company is to attempt to settle as many claims as possible. Id., citing Farinas v. Florida Farm Bureau General Insurance Co., 850 So. 2d 555 (Fla. 2003) [28 Fla. L. Weekly D1023b]. Alt is also a prerogative of insurance companies to pay, reduce, or deny claims. See id.

16. Furthermore, forcing an insurer to pay insurance benefits in excess of the stated policy limit, even after the insurer has fully complied with the duties owed to its insured . . . is not supported by the statute and violates every principle of law governing insurance contracts. See Progressive American Insurance Company v. Stand-Up MRI of Orlando, as assignee of Eusebio Isaac, 990 So. 2d 3 (Fla. App. 5th Dist. 2008) [33 Fla. L. Weekly D1746a].

17. Thus, because PROGRESSIVE AMERICAN INSURANCE COMPANY’S PIP benefits have been exhausted, Plaintiff’s interest has been extinguished. Progressive American Insurance Company v. Stand-Up MRI of Orlando, as assignee of Eusebio Isaac, 990 So. 2d 3 (Fla. App. 5th Dist. 2008) [33 Fla. L. Weekly D1746a]; MTM Diagnostic, Inc. etc., v. State Farm Mutual Automobile Insurance Co., 9 Fla. L. Weekly Supp. 581e (13th Jud. Cir. (Appellate) November 20, 2000); Neuro Imaging Associates, P.A. v. Nationwide Insur. Co of Fla., 10 Fla. L. Weekly Supp. 738a (Palm Beach County Circuit Court, appellate division, July 11, 2003); Vetter v. Security Continental Ins. Co., 567 N.W. 2d 516 (Minn. 1997); Shreve Land Co. vs. J&P Financial Corp. 421 So. 2d 722 (Fla. App. 3rd Dist. 1982).

18. Defendant also argues that Plaintiff’s acceptance and cashing of drafts pursuant to its pre-suit demand constitutes “accord and satisfaction” and “unjust enrichment;” however, this Court declines to rule on those arguments.

Accordingly, it is hereby

ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment and Attorney’s Fees and Costs is hereby DENIED; Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order is hereby moot; and Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order Based on Exhaustion of Benefits is hereby GRANTED; it is further ORDERED and ADJUDGED that Plaintiff shall take nothing by this action and Defendant shall go hence without day.