24 Fla. L. Weekly Supp. 891a
Online Reference: FLWSUPP 2410TYNAInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Insurer’s payment of bill submitted more than 35 days after date of service was gratuitous payment that does not count toward limit of benefits payable under policy — Medical provider’s motion for summary judgment regarding exhaustion of benefits is granted
D. BADOLATO, P.A., a/a/o Marielena Tynan, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit, in and for Brevard County. Case No. 05-2016-SC-013331-XXXX-XX. January 9, 2017. A.B. Majeed, Judge. Counsel: David Bender, Shuster & Saben, LLC, Satellite Beach, for Plaintiff. Michael Hammond, Progressive PIP House Counsel, Maitland, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING EXHAUSTIONOF BENEFITS AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on Plaintiff’s Motion for Summary Judgment Regarding Exhaustion of Benefits and Defendant’s Motion for Final Summary Judgment and the Court, having reviewed the motion, evidence, and heard argument of counsel, finds as follows:
Factual Background:
This is a suit brought by an assignee medical provider for payment of personal injury protection benefits. The Plaintiff treated the patient and submitted the associated medical bills to the Defendant. Upon receipt of said bills, Defendant issued reduced payment to the Plaintiff. Plaintiff thereafter sent the Defendant a pre-suit demand letter as required under Fla. Stat. 627.736(10). Defendant has alleged an affirmative defense that the personal injury protection benefits under the policy are exhausted. Plaintiff maintains that there remain benefits as there was a gratuitous payment made to Crane Creek Surgery Center. Defendant argues that the payment was not gratuitous because the bill was submitted to a health insurance company within 35 days.
Conclusions of Law:
Generally, once an insurer pays out its policy limits, thus exhausting benefits, it is no longer responsible for subsequent payments. See Simon v. Progressive Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; Sheldon v. United Services Automobile Ass’n., 55 So.3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a]; Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; Geico Indemnity Co. v. Gables Ins. Recovery, Inc., 159 So.3d 151 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2561a]. However, Fla. Stat. 627.736(5)(c)1 requires that the statement of charges for treatment or services must be furnished to the insurer, and the insurer is not required to pay, charges for treatment of services rendered more than 35 days before the postmark. The Court finds that any payments made by an insurer in violation of this portion of the statute are deemed gratuitous. See Coral Imaging Services v. Geico Indemnity Ins. Co., 955 So.2d 11 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a].
The Court finds that in order for a provider to collect from the personal injury protection benefits, it must comply with Fla. Stat. 627.736(5)(c)1 and submit its charges to the insurer timely. After reviewing the evidence, the Court finds that Crane Creek Surgery Center failed to furnish to Defendant its statement of charges for date of service February 10, 2011 within 35 days. Therefore, the payment for date of service February 10, 2011 is gratuitous and cannot count towards benefits paid under the policy.
Accordingly, it is hereby,
ORDERED AND ADJUDGED: Plaintiff’s Motion for Summary Judgment Regarding Exhaustion of Benefits is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED.
