5 Fla. L. Weekly Supp. 173b
Insurance — Personal injury protection — Insurer complied with statutory requirements related to obtaining report from similar physician before withdrawing payment of treating physician — Insured not precluded from bringing suit against insurer by assignment of benefits where insured remained contractually obligated to medical providers by way of acceptance of financial responsibility and guarantee of payment — Arbitration — Insurer waived right to arbitrate by actively participating in litigation
MARK BARKHURST, Plaintiff, vs. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant. In the County Court of the 13th Judicial Circuit, in and for Hillsborough County, Civil Division. Case No. 97-644CC-J. November 13, 1997. Marva L. Crenshaw, Judge. Counsel: Barry E. Berger, Law Offices of Berger and Dowling, Palm Harbor, for Plaintiff. Robert P. Kelly, Law Office of Hyde & Gomer, Tampa, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT and DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
THIS CAUSE having come on to be heard on October 23, 1997, upon Plaintiff’s Motion for Summary Judgement and Defendant’s Motion for Summary Judgement, or in the Alternative Partial Summary Judgement, and the Court having heard argument of counsel and otherwise being fully advised in the premises, the Court finds that:
1. On January 14, 1997, Plaintiff, Mark Barkhurst, sued Liberty Mutual Fire Insurance Company for non-payment of PIP benefits.
2. Plaintiff’s Motion for Summary Judgement alleged that the Defendant failed to comply with the requirements of Florida Statute §627.736(7) prior to withdrawing payment of Plaintiff’s treating physicians.
3. Defendant alleged in its Motion for Summary Judgment or in the Alternative Partial Summary Judgment that Plaintiff assigned PIP benefits to certain medical providers and thus, pursuant to Florida Statute §627.736(5), lacks standing capacity to sue. Defendant further alleges an entitlement to arbitrate directly with those medical providers who have accepted an assignment of benefits from the Plaintiff.
4. The Court finds that under the facts of this case, the Defendant has complied with the statutory requirements related to an insurer obtaining a report before withdrawing payment of a treating physician.
5. The Court finds that the assignment of benefits which have been presented to the Court clash with the traditional notion of an assignment. By remaining contractually obligated to his medical providers by way of acceptance of financial responsibility and guarantee of payment, Plaintiff retains standing to bring this action.
6. The Court further finds that the Defendant, subsequent to answering the Complaint, engaged in extensive discovery which went far beyond the issue of assignment of benefits. The Defendant, by actively participating in litigation, waived its right to arbitration.
Upon the foregoing facts, it is therefor:
ORDERED AND ADJUDGED that:
8. Plaintiff’s Motion for Summary Judgement is DENIED.
9. Defendant’s Motion for Summary Judgement, or in the Alternative Partial Summary Judgement is DENIED.
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