25 Fla. L. Weekly Supp. 103b

Online Reference: FLWSUPP 2501RPERNOT FINAL VERSION OF OPINION
Subsequent Changes at 25 Fla. L. Weekly Supp. 647bInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where PIP benefits were exhausted in payments to medical providers, and there is no evidence that gratuitous payments were made or that insurer acted in bad faith, no further benefits are due and owing

SOUTH TAMPA CHIROPRACTIC CENTER, P.A. (a/a/o Reynaldo Perez), Plaintiff, v. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 15-3526 CC 21. February 22, 2017. Don S. Cohn, Judge. Counsel: Erick Evans , The Patino Law Firm, P.A., Hialeah, for Plaintiff. Anthony G. Atala, Kubicki Draper, P.A., Miami, for Defendant.

VACATED. (November 6, 2017)

ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT BASED ONEXHAUSTION OF BENEFITS AND FINALJUDGMENT IN FAVOR OF DEFENDANT,MGA INSURANCE COMPANY, INC.

THIS CAUSE having come before the Court on February 9, 2017 on Defendant’s Motion for Final Summary Judgment Based on Exhaustion of Benefits, and the Court having reviewed the Motion, the entire Court file, the relevant legal authorities, having heard the arguments of the parties’ respective counsels, reviewed the entirety of the record, and having been sufficiently advised in the premises, the Court finds as follows:

FACTS

Reynaldo Perez, the Claimant, purchased an automobile insurance policy from the Defendant, MGA Insurance Company, Inc. The Policy provided $10,000.00 in Personal Injury Protection (“PIP”) Benefits, contained a $1,000.00 Policy Deductible, and did not have medical payments (“Med-Pay”) coverage. The policy of insurance was governed by the Florida No-Fault (“PIP”) Statute, section 627.736, Florida Statutes (2012).

On December 15, 2014, Reynaldo Perez was involved in a motor vehicle accident. After the accident, Mr. Perez received medical treatment from two medical providers, the Plaintiff, South Tampa Chiropractic Center, P.A., and a diagnostic center, MRI Associates of St. Pete d/b/a Saint Pete MRI. Defendant, MGA Insurance Company, Inc. received eight sets of bills from South Tampa Chiropractic Center, P.A. in the amount of $16,025.00 and one set of bills from MRI Associates of St. Pete in the amount of $2,450.00. It is undisputed that the bills were received timely.

Pursuant to the Affidavit of Clara Noda in Support of the Motion and her testimony given at deposition, as of May 29, 2015, the Defendant, MGA Insurance Company, Inc. issued payments to claimant’s medical providers as follows: $853.02 was paid to MRI Associates of St. Pete, and the balance of $9,146.98 was paid to the plaintiff, South Tampa Chiropractic Center, P.A., totaling payments of $10,000.00 made to the claimant’s medical providers. The final payment exhausting benefits was sent to the Plaintiff. Copies of the cashed checks that were paid to both medical providers were included in the affidavit and deposition transcript. The Plaintiff filed an Affidavit of Robert Desapio, the owner of the plaintiff’s facility, indicating that the Plaintiff received a lesser amount. However, the Defendant provided copies of the checks which show that the payments made contained a stamp from the Plaintiff’s bank account, and that the checks were all cashed and debited from the Defendant’s bank account.

As of May 29, 2015, the Defendant tendered payment to the plaintiff and the diagnostic facility in the amount of $10,000.00, thereby, exhausting the available PIP benefits. A notice advising that the benefits were exhausted was included in the explanation of benefits sent to the Plaintiff. Subsequently, the Plaintiff issued a demand letter, pursuant to Florida Statute s. 627.736(10). In response to the Plaintiff’s demand letter, on October 14, 2015, Defendant, MGA Insurance Company, Inc. sent a letter to the Plaintiff advising that PIP benefits were exhausted.

Notwithstanding, the Plaintiff filed suit in this matter on November 19, 2015 for breach of contract. The Defendant filed their Motion for Final Summary Judgment on or about March 25, 2016 which was heard by the Court on February 9, 2017. The legal issue before the Court in this case is whether the Defendant, MGA Insurance Company, Inc., properly exhausted PIP benefits in the claim submitted by Reynaldo Diaz for the motor vehicle accident alleged in the Plaintiff’s complaint.

ANALYSIS

Pursuant to Florida Statute s. 627.736(1), “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. (Emphasis added).

Consistent with the statute, the Policy of Insurance issued by the Defendant, MGA Insurance Company, Inc. provided its insured, Reynaldo Perez, with $10,000.00 in PIP benefits as a result of the motor vehicle accident that occurred on December 15, 2014. In the arguments presented to the Court, there exists no evidence to prove that any gratuitous payments were made by the Defendant in the subject claim nor any allegations made by the Plaintiff that the Defendant acted in bad faith. See Coral Imaging Services (a/a/o Virgilio Reyes) v. GEICO Indemnity Co., 955 So.2d 11 (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D2478a]. The Court finds that the Defendant has already paid the maximum of $10,000.00 in PIP benefits to the claimant’s medical providers, including Plaintiff, for medical services/treatment rendered to the claimant. The Defendant’s payments were made in good faith.

Florida case law is well settled that an insurer has no liability for unpaid PIP benefits once PIP benefits have been exhausted. Northwoods Sports Med. & Physical Rehab., Inc. and Wellness Associates of Florida., Inc., v. State Farm Mut. Auto. Ins. Co. and USAA Cas. Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; Sheldon v. United Services Auto. Ass’n., 55 So. 3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a]; Simon v. Progressive Express 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 2005) [33 Fla. L. Weekly D1746a]; Millennium Diagnostic Imaging Ctr. Inc., a/a/o Alfonso Taboada v. Progressive Express Ins. Co., 987 So. 2d 755 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1742b].

In the instant case, as of approximately May 29, 2015, well before this suit was filed, the Defendant issued payments totaling $10,000.00 to various providers, including the Plaintiff, for the treatment/services rendered to the claimant, and exhausted PIP benefits. The Plaintiff did not provide this court with any evidence to dispute that the Benefits totaling $10,000.00 were sent prior to the filing of this suit to the claimant’s medical providers. Therefore, based on the evidence provided by the Defendant of the checks made payable to the plaintiff and containing a stamp indicating that the check was deposited to the Plaintiff’s bank account attached to Clara Noda’s affidavit and deposition testimony, the Defendant did in fact issue payments of $10,000.00, thereby exhausting the available PIP benefits.

The Court has reviewed the affidavits of Dr. Eduardo Ramirez, D.C., Dr. Robert Desapio, and Clara Noda, and does not grant a Motion to Strike any of the affidavits filed in this cause of action. The Court, however, rejects Plaintiff’s argument that the Defendant, MGA Insurance Company, Inc. issued payment based on an incorrect or different fee schedule as allegation in the affidavit of Dr. Ramirez.

“(E)xhaustion of benefits absolves the insurer from any responsibility to pay an otherwise valid claim where the exhaustion occurred (a) after the insurer paid an amount that the provider claims is less than the contract requires; (b) after the insurer was served with a filed complaint; and (c) absent bad faith in the handling of the claim by the insurer.” Millennium Radiology, LLC vs. State Farm Mutual Auto., 152 So.3d 797 (Fla. 3d DCA, 2014) [39 Fla. L. Weekly D2600d] and Geico Indemnity Company vs. Gables Insurance Recovery, Inc. (a/a/o Rita M. Lauzan), 159 So.3d 151 (Fla. 3rd DCA, 2014) [39 Fla. L. Weekly D2561a].

Due to the Holdings of Gables Insurance Recovery, Millennium Radiology, Northwood Sports, Sheldon, Simon, Coral Imaging, and Stand-up MRI, the insured’s PIP benefits have exhausted, there has been no proof that the Defendant acted in bad faith or paid gratuitously, and thus, no benefits are due and owing, and the Plaintiff has no entitlement to interest, penalty, or attorney’s fees and costs. The Court finds that no genuine issue of material fact as to any material fact exists and that the Defendant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.150(c); see also Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; America Bankers Ins. Co. v. Nolan’s Garage, Inc., 262 So. 2d 727, 729 (Fla. 3d DCA 1972). Therefore, it is

ORDERED AND ADJUDGED:

1. Defendant’s Motion for Final Summary Judgment based on Exhaustion of Benefits is hereby GRANTED.

2. The Court denies Defendant’s Motion to Strike the Affidavit of Robert Desapio and the Plaintiff’s Motion to Strike the Affidavit of Clara Noda.

3. Final Summary Judgment is entered in Favor of the Defendant, MGA Insurance Company, Inc.

FINAL JUDGMENT IN FAVOR OF MGA INSURANCE COMPANY, INC.

1. That Final Judgment is hereby entered in favor of Defendant, MGA Insurance Company, Inc. and against Plaintiff, South Tampa Chiropractic Center, P.A. (a/a/o Reynaldo Perez).

2. That the Plaintiff, South Tampa Chiropractic Center, P.A. (a/a/o Reynaldo Perez) take nothing by this action and that Defendant, MGA Insurance Company, Inc. shall go hence without day.

3. That the court reserves jurisdiction to entertain any motions regarding an award of attorney’s fees and taxable costs in favor of the Defendant.