27 Fla. L. Weekly Supp. 558b
Online Reference: FLWSUPP 2706ASSOInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer initially denied coverage for bills submitted by all medical providers based on alleged material misrepresentation, insurer abandoned material misrepresentation defense after plaintiff filed suit to recover PIP benefits, and insurer subsequently exhausted PIP benefits through payments to providers other than plaintiff, summary disposition is entered in favor of insurer — Plaintiff’s claim that insurer paid other providers’ claims in excess of amount required by Medicare fee schedule does not create triable issue where there were $5,000 in additional unpaid claims that would be paid before plaintiff’s bill was reached
ASSOCIATES IN FAMILY PRACTICE OF BROWARD LLC a/a/o Patricia Lara, Plaintiff(s) / Petitioner(s), v. WINDHAVEN INSURANCE COMPANY, Defendant(s)/ Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17008999, Division 53. August 15, 2019. Robert Lee, Judge. Counsel: Tricia Neimand, Jason B. Giller, P.A., Miami; and Joshua Costello, Schiller, Kessler & Gomez, PLC, Fort Lauderdale, for Plaintiff. Shadae Moss, Martin Hoffenden, and Bridgid Napier, Windhaven Claims Management LLC, Doral, for Defendant.
FINAL JUDGMENTFINAL SUMMARY DISPOSITION1IN FAVOR OF DEFENDANT
THIS CAUSE having come before the Court on August 13, 2019 for hearing of the Defendant’s Motion for Final Summary Judgment, and Plaintiff’s Motion for Summary Judgment, both addressing the issue of exhaustion of PIP benefits, and the Court’s having reviewed the Motion, the entire Court file, the relevant legal authorities, having heard argument and been sufficiently advised in the premises, the Court finds as follows:
This case involves a claim of post-suit exhaustion of PIP benefits, the stipulated sole remaining issue in this case. The Defendant Windhaven initially denied the entire claim under a defense of material misrepresentation. While multiple providers submitted bills prior to the Plaintiff’s submission of its bill in this case, only the Plaintiff thus far has decided to file suit. During litigation, due to an acknowledged “business decision,” Windhaven abandoned its defense of material misrepresentation and instead decided to pay the entire claim within policy limits. However, when payments were retroactively made in the order the bills were received, the benefits were exhausted well before the Plaintiff’s claim was reached. As a result, Windhaven amended its pleadings to reflect the new defense of exhaustion of benefits, while abandoning its material misrepresentation defense. The Plaintiff has filed no avoidances to this new defense.
The Court believed the rule about post-suit exhaustion of benefits had been settled. But once again, in the cosmos that is PIP litigation, not so fast. The Plaintiff argues that the rule of law established in Simon2 and its progeny does not apply to the facts of this case because those appellate rulings do not apply when claims have been “settled either by insurance company acceptance or by resolution of disputed charges through suit.” See Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Auto. Ins. Co., 137 So.3d 1049, 1057 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]. According to the Plaintiff, the claims of the other providers in this case were “settled” when Windhaven initially denied the claim in toto due to an alleged material misrepresentation by the claimant. Therefore, under the Plaintiff’s argument, the “English Rule” kicks in because the Plaintiff is resolving the claim via suit, whereas the other providers chose not to contest Windhaven’s determination that there had been a material misrepresentation. To be sure, in Northwoods, the appellate court left opened the door to the applicability of the English Rule when the issue of “compensability” of a claim has been “established.” Id. However, in the Court’s view, there is no valid argument in this case that the other providers’ claims have been “established” as not being “compensable.” Here, there is no argument that the statute of limitations would have barred these providers from seeking payment of their claims at the time Windhaven made payment. To the contrary, these possible lawsuits continued to hang over the head of Windhaven. Once Windhaven determined that it would abandon its material misrepresentation defense, it no longer had a valid reason to deny payment of the prior claims. This Court assumes the appellate court used the word “established” in its common, ordinary usage, which means to “make firm or secure [ . . . t]o cause to be recognized and accepted without question.” American Heritage Dict. of the English Language 448 (New College ed. 1976) (emphasis added). Additionally, the Plaintiff’s claim that this ruling would trigger the “reserve or hold theory” rejected in Simon is not present because no payments were made at all to anyone prior to the time Windhaven decided to abandon the defense of material misrepresentation.
The Plaintiff also makes a claim that Windhaven has failed to establish that the amounts it paid to the other claimants were made “properly” under the 200% Medicare standard provided for in the PIP statute.3 According to this argument, if Windhaven paid more than it should have, then there would be funds left to pay to the Plaintiff. But it is undisputed that more than an additional $5,000.00 in submitted claims would first have to be reached before the Plaintiff’s bill is reached in this case. On this matter, the Court therefore finds no triable issue, as to go through the “needless wheel-spinning” to determine these additional small amounts would be a fruitless exercise for the benefit of providers not a party to this lawsuit.4 Rule 7.135, Fla. Sm. Cl. R. (Court reserved this rule in this case by Order dated August 3, 2017.)
Under the facts of this case, a good faith argument might be made that Windhaven should not be able to rely on a mere “business decision” to thwart an award of attorney’s fees. However, the Court notes that any issue of bad faith, improper manipulation of bills, or gratuitous payments, which might have preserved this argument, is not before the Court for two reasons: it was not preserved in the joint pretrial stipulation, and it was not pled by the Plaintiff as an avoidance to the Windhaven’s defense of exhaustion. Therefore, the question of whether Windhaven acted in bad faith by abandoning its defense of material misrepresentation, and thereupon paying the prior claims, just to avoid an award of attorney’s fees, while seemingly problematic, is not a safe harbor for the Plaintiff in this particular case. Exceptions to defenses are avoidances which must be pled and proven. See Hunt v. Corrections Corp. of America, 38 So.3d 173, 177 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1102b]; Wishnatzki v. Coffman Construction, Inc., 884 So.2d 282, 285-86 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1867a]; Richardson v. Wilson, 490 So.2d 1039, 1040 (Fla. 1st DCA 1986). See also Trawick’s Prac. & Proc. §11:8 (2018 ed.) (any “excuse or exception” to a defense must be asserted in a reply to avoid a pled defense). Accordingly, it is hereby
ORDERED AND ADJUDGED that Final Summary Disposition is hereby entered in favor of the Defendant. The Plaintiff shall take nothing in this action. The Court reserves jurisdiction on any issue of attorney’s fees or court costs.
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1The Court notes that, as permitted by Rule 7.020(c), it retained Rule 7.135 as applicable to this case when it entered its Order of August 3, 2017.
2Simon v. Progressive Exp. Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. See also Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; Geico Indemnity Co. v. Gables Ins. Recovery, Inc., 159 So.3d 151 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2561a].
3The Plaintiff does not contend that the payments were not made to the other providers. The Court further notes that both parties stipulated to the admissibility of the PIP payment log in the joint pretrial stipulation as well as at the pretrial conference.
4See Christopher Advertising Group, Inc. v. R & B Holding Group, Inc., 883 So.2d 867, 876 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2030c].
