26 Fla. L. Weekly Supp. 233a
Online Reference: FLWSUPP 2603BHANInsurance — Personal injury protection — Insurer’s motion for final summary judgment on ground that policy PIP benefits have been exhausted is denied where plaintiff is not seeking PIP benefits, but a declaratory judgment on the issue of whether policy clearly and unambiguously elected schedule of maximum charges payment calculation method, in which case provider would be prohibited from balance billing the insured for amounts not paid by insurer, or whether fact-dependent payment calculation method described in section 627.736(5)(a) applied — Regardless of whether benefits are exhausted, bona fide, actual, and present practical need for declaration exists
CRESPO & ASSOCIATES, P.A., a.a.o. Amirali Bhannadia, Plaintiff, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, County Civil Division. Case No. 17-CC-039481, Division L. April 16, 2018. Cynthia S. Oster, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa; Anthony T. Prieto, Morgan & Morgan, Tampa, for Plaintiff. Edwin V. Valen, Lisa Lewis, and Maryann N. Jaghab, Cole, Scott & Kissane, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 19, 2018 concerning, the Defendant’s Motion for Final Summary Judgment and Memorandum of Law in Support Therof” dated December 20, 2017. The Court, having considered the motion, the arguments of counsel, the record, and the admissible evidence, and being otherwise advised in the premises, hereby
ORDERS AND ADJUDGES as follows:
1. This is a declaratory judgment action. The Defendant has filed a motion for final summary judgment, contending that the case must be dismissed because the insured patient’s $10,000 of personal injury protection (“PIP”) benefits have been exhausted.
2. This Court is persuaded by and agrees with the Honorable Michael S. Williams’ recent decision in Crespo & Associates, P.A., a.a.o. A. Vilchis v. Progressive American Ins. Co., Case No. 17-CC-002778, Div. L, “Order on Competing Motions for Summary Judgment” (Fla. Hillsborough County Ct. Feb. 7, 2018) [25 Fla. L. Weekly Supp. 1047a].
3. As explained in Vilchis, even if PIP benefits are exhausted, the Plaintiff is not seeking any PIP benefits in this case. The Plaintiff is seeking a declaratory judgment on the issue of whether the Defendant’s insurance policy clearly and unambiguously elects the schedule of maximum charges payment calculation method described in Section 627.736(5)(a)1-5, Florida Statutes. If the insurance policy properly elected the schedule of maximum charges method, the Plaintiff is prohibited by Section 627.736(5)(a)4, Florida Statutes from balance billing the insured patient for amounts not paid by the Defendant under that method. See, e.g., Green v. State Farm Mut. Ins. Co., 225 So.3d 229, 231 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1119a]. However, this prohibition does not apply to the fact-dependent payment calculation method described in Section 627.736(5)(a), Florida Statutes. Thus, with respect to any charges not paid by the Defendant, the Plaintiff needs to know whether the Defendant’s insurance policy is governed by the schedule of maximum charges method or the fact-dependent method, in order to bill the insured patient for the lawfully correct amount. For this reason, regardless of whether PIP benefits are exhausted or not, there is a bona fide, actual, present and practical need for a declaration in this case. See, Vilchis. See also, “X” Corporation v. “Y” Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993) (“plaintiff must show a bona fide, actual, present, and practical need for the declaration”).
4. Accordingly, the “Defendant’s Motion for Final Summary Judgment” is hereby DENIED.
