24 Fla. L. Weekly Supp. 889b
Online Reference: FLWSUPP 2410MOREInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy does not clearly and unambiguously elect permissive statutory fee schedule — Exhaustion of policy limits — Where insurer did not plead exhaustion of benefits as affirmative defense and raised issue for first time in motion for summary judgment, insurer cannot prevail on that basis — Additionally, affidavit in support of insurer’s motion for summary judgment is legally insufficient where affidavit does not lay foundation to authenticate attached business records and, therefore, does not establish exhaustion of benefits
QUANTUM IMAGING HOLDINGS, LLC a/a/o Alejandro Moreno, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-016739 COCE 50. December 27, 2016. Peter B. Skolnik, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Douglas G. Brehm, for Defendant.
ORDER ON PLAINTIFF’S and DEFENDANT’SMOTIONS FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come to be heard before the Court on Plaintiff’s and Defendant’s Motion for Final Summary Judgment and Memorandum of Law on November 10, 2016, after reviewing the pleadings, the evidence, and argument of counsel, and the relevant legal authorities, the Court makes the following findings:
This case involves competing interpretations of a PIP insurance policy. The Plaintiff’s interpretation would result in the Defendant (hereinafter referred to as “Allstate”) having to pay more on the individual medical bills submitted, and of course Allstate’s would result in a finding that the lesser amount it paid complied with the policy.
The policy language before the Court is addressed by the controlling decision of the appellate court in Orthopedic Specialists v. Allstate Insurance Company, 40 Fla. L. Weekly D1918a (Fla. 4th DCA Aug. 19, 2015), which held that the referenced language did not clearly and unambiguously elect the Medicare fee schedules. Defendant’s policy did not elect the permissive payment methodology of Florida Statute §627.736(5)(a)(2)(a-f).
On October 26, 2016, Defendant filed an affidavit of litigation adjuster Shawna Diamond in support of Allstate’s Omnibus Response to Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, asserting for the first time that benefits have been exhausted. Defendant, at no time during the pendency of the instant case, has filed a Motion for Leave of Court to amend its affirmative defenses and assert exhaustion of benefits. The law is well settled that “[a]n affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist.” Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a]; Griffin Inudstries, LLC v. Dixie Southland Corp., 162 So.3d 1062 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D895b] (citing Custer). Allstate’s assertion that it has preserved a defense as to exhaustion of benefits is not supported by law and is contrary to the Florida Rules of Civil Procedure and the fundamental concepts of due process that are implicated in giving a party notice of a defense. Any limitations in an insurer’s liability under an insurance policy must be asserted as an affirmative defense. See Herrera v. C.A. Seguros Catatumbo, 844 So.2d 664 (FIa. 3rd DCA 2003) [28 Fla. L. Weekly D853a]; St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002) [28 Fla. L. Weekly D131b] (failure to raise limitation on liability as affirmative defense resulted in waiver of limitation); see also Superior Ins. Co. v. Holden, 642 So.2d 1139 (Fla. 4th DCA 1994) (insurer asserted affirmative defenses including inter alia policy exclusions and limits of the policy); State Farm Mutual Automobile Insurance Company v. Curran, 135 So.3d 1071, 1079 (Fla.2014) [39 Fla. L. Weekly S122a]; Jones v. Florida Ins. Guaranty Ass’n, Inc. 908 So.2d 435 (FIa. 2005) [30 Fla. L. Weekly S581a]. Exhaustion of benefits must be raised as an affirmative defense because it is a classic avoidance of the allegations raised in the complaint. In other words, Allstate is saying that, notwithstanding all allegations in the Complaint, it is not liable for further PIP benefits because its obligation was limited to $ 10,000 of benefits which have been exhausted. Thus, the burden falls on an insurer to take such steps, i.e., asserting the affirmative defense of exhaustion, which would allow a court to consider whether the policy limitations have been reached and have been reached properly. Id. There is no benefits exhausted defense as none was pled. Allstate cannot prevail on the basis of benefits exhausted without pleading and proving as much because the law is well settled that a party cannot prevail on a claim or defense that has not been pled. See Arky, Freed, et al. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1989); Butler v. Yusem, 4 So.3d 102 (Fla.2010) [35 Fla. L. Weekly S493a]; Straub v. Muir-Villas Homeowners Assn., Inc., 128 So.3d 885 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2655a].
Notwithstanding the failure to plead exhaustion as required by law, the Court heard Allstate’s Motion for Summary Judgment on the issue of exhaustion of benefits and ruled that the Defendant’s affidavit is legally insufficient as it does not lay a foundation to authenticate the records attached to the affidavit as to business records and as such, does not establish that the Defendant exhausted medical benefits.
Accordingly, the Court will enter Final Summary Judgment in favor of the Plaintiff and against Defendant.
The Plaintiff is entitled to recover the costs of this action and reasonable attorney’s fees under 627.428, Florida Statutes. This Court retains jurisdiction to determine the amounts of costs and attorney’s fees due Plaintiff.
