23 Fla. L. Weekly Supp. 872a
Online Reference: FLWSUPP 2308FRANInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where insurer sent global settlement check to medical provider’s attorneys that intermixed benefits with attorney’s fees, costs and interest without any explanation of how check would be apportioned, there is no evidence that benefits have been exhausted
OPEN MAGNETIC SCANNING, LTD. d/b/a WINDSOR IMAGING, a/a/o Pearl Francis, Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-006877 COWE 82. December 22, 2015. Alan R. Marks, Judge. Counsel: Marc Finkelstein, Law Office of Marc Finkelstein, P.A., Fort Lauderdale, for Plaintiff. Ryan Luering, Roig Lawyers, Deerfield Beach, for Defendant.
Final judgment in case AFFIRMED. FLWSUPP 2707FRAN
ORDER DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENTAS TO EXHAUSTION OF BENEFITS
THIS CAUSE came before the Court on Defendant’s Motion for Final Summary Judgment as to Exhaustion of Benefits on November 30, 2015. The Court having reviewed the motion and record evidence, heard argument of the parties’ respective counsel, and being otherwise duly advised in the premises, finds as follows:
This lawsuit arises out of the reduction of Personal Injury Protection (“PIP”) benefits to OPEN MAGNETIC SCANNING, LTD. d/b/a Windsor Imaging (hereinafter “Open”) for diagnostic services provided to Pearl Francis, claimant under a policy of insurance issued by the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (hereinafter “State Farm”).
Plaintiff provided diagnostic services, MRIs of the of the cervical spine and lumbar spine, to State Farm’s insured. Plaintiff submitted a bill to State Farm for CPT Code 72141 and CPT Code 72148 in the amount of $3,800.00. State Farm reduced the amount allowed to 200% of the Medicare Part B Fee Schedule, which was $2,216.30. It issued payment in the amount of $1,773.04, which represented 80% of 2007 of the Medicare Part B Fee Schedule.
On or about July 6, 2013, Plaintiff filed the instant claim for breach of contract to recover the improperly reduced personal injury protection benefits. On or about November 8, 2013, Defendant served its Answer and Affirmative Defenses to Plaintiff’s Statement of Claim. On December 5, 2014, Defendant filed its Motion for Leave to Amend its Answer and Affirmative Defenses to include exhaustion of benefits. On February 26, 2015, Defendant filed the Affidavit of Lisa Nazario regarding the exhaustion of benefits. Defendant’s Motion to amend its answer and affirmative defenses was granted on March 2, 2015. On or about April 15, 2015, Defendant filed its Motion for Summary Judgment as to exhaustion of benefits.
On November 30, 2015, a hearing was held Defendant’s Motion for Final Summary Judgment as to the exhaustion of benefits. State Farm argued it exhausted benefits on November 4, 2014.1 Plaintiff, relying upon the “global settlement” between the Law Offices of Adelman & Adelman, P.A. and the subsequent payment made to Dr. Jablon, argued that benefits were not properly exhausted and therefore PIP benefits still remained.
In support of Defendant’s Motion for Summary Judgment Regarding the exhaustion of benefits, Defendant relied upon the Affidavit of Lisa Nazario dated February 13, 2015, and its PIP Payout log, which shows that benefits were allegedly exhausted, on or about November 4, 2014, when State Farm allegedly paid Dr. Jablon its remaining PIP of $4,435.51 (which was included in the $6,900.00 global settlement). Plaintiff filed the Supplemental Affidavit of Scott Jablon, D.C. dated October 15, 2015, in opposition to Defendant’s Motion for Final Summary Judgment regarding the exhaustion of benefits. Plaintiff argued that Defendant could not prove benefits were legally and permissibly exhausted. Dr. Jablon testified in his supplemental affidavit that a $6,900.00 check was issued to the Law Offices of Adelman & Adelman, P.A. pursuant to the terms of a global settlement which included attorneys’ fees, costs and benefits. He further testified that he only received $2,500.00 from the Law Offices of Adelman & Adelman, P.A. and received no further payments subsequent to that payment. Plaintiff argued that under those circumstances, the benefits paid to Dr. Jablon did not properly exhaust benefits. No record evidence was produced by Defendant which indicated that benefits were legally and permissibly exhausted. Nevertheless, Defendant argued the global payment made to the Law Offices of Adelman & Adelman, P.A. for $6,900.00 properly exhausted benefits irrespective of the fact that there was never any communication between State Farm and the Law Offices of Adelman & Adelman, P.A. how the $6,900.00 was to be divided. State Farm further argued it has no duty to call into question how the global settlement was to be divided and regardless of how it was to be divided, the global settlement represented a “proper” exhaustion of benefits. State Farm further contended that it had the right to apportion on the PIP payout log attached to Ms. Nazario’s affidavit the sum of the remaining PIP benefits in the amount of $4,435.51 by virtue of the above mentioned global settlement. In response, Plaintiff argued that State Farm had a duty to the insured, not the Law Offices of Adelman & Adelman, P.A., to ensure the entire $10,000.00 was paid to the providers who treated the insured. State Farm could easily have accomplished this goal had it simply sent the Law Offices of Adelman & Adelman, P.A. 2 checks: one for Dr. Jablon in the amount of $4,435.51 and another to the Law Offices of Adelman & Adelman, P.A. in the amount of $2,464.49. In this case, Defendant did not comply with its duty. State Farm improperly attempted to delegate its claim adjusting process to the Law Offices of Adelman & Adelman, P.A.
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows: Emphasis added.
State Farm’s policy issued to Pearl Francis, in compliance with the PIP statute, provided for $10,000.00 in benefits. The Florida Administrative Code, Rule 690-220-201, governs the ethical requirements of adjusters. Section (4) of said rule provides in part: “An adjuster must put the duty for fair and honest treatment of the claimant above the adajuster’s own interest, in every instance. Section (4)(f) states “An adjuster, upon undertaking the handling of a claim, shall act with dispatch and due diligence in achieving a proper disposition thereof.” Section (4)(b) states in part: “An adjuster shall adjust all claims strictly in accordance wth the insurance contract. Emphasis added.
An insurer may not remit payment to a non-medical provider, such as an attorney, which intermix’s insurance benefits with monies which are intended to reimburse for non-benefits, such as interest, attorney’s fees or costs and reduce the available insurance benefits by the total of that payment. To do so would thwart the clear intent of the PIP statute to provide $10,000 in benefits for medical and disability benefits.
Because State Farm has chosen a method of reimbursement which obfuscates the amount which was actually appropriated for medical benefits, it cannot claim that the medical benefits provided for by the insurance policy were exhausted in the manner contemplated by the clear statutory scheme of the PIP statute. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-684 (Fla. 2000) [25 Fla. L. Weekly S1103a] (“Without a doubt, the purpose of the no-fall statutory scheme is to ‘provide swift and virtually automatic payment so the injured insured may get on with his life without undue financial interruption.’ ”)(citations omitted).
It would be an anathema to the very essence of the statutory intent of the PIP statute to ensure that medical bills get paid to permit an insurer to circumvent that intent by paying non-medical sanctions and categorizing it as medical bills to the detriment of its insured and in violation of the insurance policy.
The Court also has thoroughly reviewed two Broward County cases which are directly on point. The first is Sports Imaging Centers, LLC d/b/a Windsor Imaging a/a/o Paola Foxx vs. State Farm Mutual Automobile Insurance Company, Case No.: 2012-9368 (54) (Judge Cowart). The second is Open Magnetic Scanning, LTD d/b/a Windsor Imaging a/a/o Samuel Pierre-Louis v. State Farm Mutual Automobile Insurance Company, Case No.: 2014-9381 (50) (Judge Skolnik). In both cases, the Defendant alleged it had exhausted benefits in the same manner as in the instant case, to wit: sending a global settlement check to the medical provider’s attorney without any confirmation of how the global check would be apportioned. The Court has reviewed Judge Cowart’ s written order denying Defendant’s Motion for Summary Judgment regarding exhaustion in Paola Foxx as well as having reviewed the transcript of the hearing in Samuel Pierre-Louis. The Court agrees with Judge Cowart and Judge Skolnik regarding the denial of Defendant’s Motion.
Based on the above, this Court finds that there is no record evidence of benefits being exhausted in this case. In fact, there is record evidence that Dr. Jablon only received $2,500.00, thereby leaving remaining PIP benefits of $1,935.51 ($4,435.51 in remaining PIP benefits — $2,500.00 paid to Dr. Jablon).
Therefore it is,
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment Regarding the Exhaustion of Benefits is hereby DENIED.
__________________
1Plaintiff had learned that on November 4, 2014, Defendant entered into a global settlement with the Law Offices of Adelman & Adelman, P.A. for $6,900.00, which purportedly included the remaining PIP benefits, attorney’s fees, interest and costs. This check was made out to the Law Offices of Adelman & Adelman, P.A.
