5 Fla. L. Weekly Supp. 663a
Insurance — Personal injury protection — Small claims action against insurer by assignee of PIP benefits, claiming that insurer, who made payments on subsequently submitted bills until limits of PIP coverage had been exhausted, failed to timely pay assignee’s PIP claim — Summary judgment improper where material issues of fact remain as to whether assignee was formally notified that its claim for PIP benefits was denied, whether assignee was notified of reason for denial, whether insurer had reasonable proof of its nonresponsibility for bill, and whether the way assignee’s bill was handled is standard procedure used by insurer and insurance industry
PINNACLE MEDICAL, INC. d/b/a ISO DATA DIAGNOSTICS, Appellant/Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Appellee/Defendant. 17th Judicial Circuit in and for Broward County. Case No. 97-12340 (18). L.T. Case No. 96-6203 (50). April 23, 1998. W. Herbert Moriarty, Judge. Counsel: Charles J. Kane, Greenspan & Kane, for Appellant. Steven Kuveikis, Green, Murphy, Wilke & Murphy, P.A., for Appellee.
OPINION
THIS CAUSE comes before the Court upon the Appeal of PINNACLE MEDICAL, INC. d/b/a ISO Data Diag- nostics, of a County Court Final Judgment granting the Defendant ALLSTATE INSURANCE COMPANY’s Motion for Summary Judgment. The Court having reviewed the Record, heard argument of counsel, considered the briefs filed by the parties, and all relevant case and statutory authority, and being otherwise fully advised in the premises, hereby finds and concludes the following:
The Plaintiff (Pinnacle) filed a small claims action against Defendant (Allstate), claiming that Allstate failed to timely pay its PIP claim, as mandated by section 627.736(4), Florida Statutes, and sought damages, including the penalty interest authorized by statute, and attorney fees and costs. Allstate was granted summary judgment on the basis that the $10,000 coverage under its insured’s policy had been depleted.
The Record indicates that the insured was involved in a motor vehicle accident on July 28, 1995, and had insurance coverage with Allstate which included PIP benefits in the amount of $10,000 each person. On September 11, 1995, the insured executed an assignment of benefits to Pinnacle for medical services received, an Isokinetic muscle test. Allstate’s records indicate it received Pinnacle’s bill for $1,330 on September 21, 1995, and thirty days later, there was available PIP coverage to pay the bill. Nevertheless, Pinnacle was not paid; but statements from other health care providers were paid, even though the bills were received subsequent to Pinnacle’s demand for payment. R. 114-115. Pinnacle requested arbitration on December 5, 1995, but the parties subsequently agreed to remove the case from arbitration and place it in litigation.1
The trial court’s Order recognizes the above-stated facts and states “ALLSTATE INSURANCE COMPANY exercised its right to have the bill reviewed to determine whether it was reasonable, necessary, or related to the accident on July 28, 1995.” R. 116. The trial court found that the Plaintiff “stands in the shoes” of the Insured and retains only those rights granted the Insured; and as Allstate had made payment on bills subsequently submitted, the limits of the PIP coverage had been exhausted. On that basis, the trial court granted summary judgment in favor of Allstate. R. 116-118.
There is no question that an insurer is only required to pay for reasonable and necessary medical services. Howev- er, the Record before this Court does not indicate the basis for Allstate’s denial of the claim at the time it was received or thirty days thereafter. The appellate courts have held that the statutory language of Section 627.736(4)(b) is clear and unambiguous. The insurance company has thirty days in which to verify a claim after receiving written notice of same. “The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the… “no fault” insurance statute a `no-pay’ plan — a result… not intended by the legisla- ture.” Martinez v. Fortune Insurance Co., 684 So. 2d 201, 203 (Fla. 4th DCA 1996); Fortune Ins. Co. v. Pacheo, 695 So. 2d 394, 395 (Fla. 3d DCA 1997); Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974). The only provision which arguably provides for tolling the thirty day time limit is when “the insurer has reasonable proof to establish that the insurer is not responsible for the payment…” Section 627.736(4)(b), Fla. Stat.; Crooks v. State Farm Mut. Automobile Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995). Allstate apparently decided that Pinnacle’s bill was not reasonable and/or necessary, but the Record does not establish whether Allstate had reasonable proof of its nonresponsibility for the bill; it does establish that such a determination was never made by an arbitrator or court.
The Record does not indicate whether Pinnacle was formally notified that its claim for PIP benefits was denied or whether it was merely surmised when the bill was not paid within 30 days; the Record does not indicate whether Pinnacle was notified of the reason for denial; the Record does not indicate whether the way Pinnacle’s bill was handled is the standard procedure used by Allstate and the insurance industry, etc. In short, there are material issues of fact which must be resolved.
The trial court is correct that in the normal course, the maximum liability of an insurer under an automobile policy is the amount contracted for, even if the insured’s losses greatly exceeds the maximum amount of coverage. R. 118. However, Allstate’s maximum liability is not Appellant’s challenge; it is Allstate’s method and priority of making PIP payments. The issue presented is whether an insurer is entitled to pay PIP benefit claims in any order they deem appropriate until the benefits are exhausted; or whether an insurer is required to “set aside” funds in the amount which would be due a medical provider whose bill has been challenged, at least until challenges to the denial of payment are resolved.2 If the procedure used in this case was allowed in each instance as a matter of law, it would permit and sanction allowing an insurer to apply the payments of medical bills in any manner it chose and, in some cases, to exhaust PIP benefits so as to deny payment to any medical providers who are not “fa- vored.”3 The courts cannot be unwitting facilitators of such a manipulation. Cf. Bennet v. State Farm Mutual Automobile Ins. Co., 580 So. 2d 217 (Fla. 2d DCA 1991) (Insurer cannot manipulate payments to exhaust PIP benefits before medical payments coverage deplet- ed). This Court does not claim such a manipulation occurred in this case; the point is that without resolution of all material facts, such a determination could not be made, precluding summary judgment.
For these reasons, summary judgment is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.4
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1There is no statement indicating why the case was removed from arbitration, but the insured’s policy includes an arbitration clause which states: Any claim dispute involving medical benefits under this part of the policy between us and a health care provider who has agreed to accept an assignment of personal injury protection benefits will be decided by arbitration upon the written request of either party. However, arbitration will not apply to disputes regarding the termination of personal injury protection benefits. (underlined emphasis supplied). R. 90.
2Allstate alleged that by the time Pinnacle sought arbitration, there was only $735 remaining in PIP coverage. (R. 40) However, even that amount was not reserved in the event an arbitrator deemed payment was required.
3In many cases, the amount of the outstanding bill in comparison to the costs of an appeal would make an appeal less likely and, therefore, the procedure unchallenged.
4After all material issues of fact are resolved, the trial court may decide that the case presents an issue of great public importance which could be certified to the District Court of Appeal pursuant to Rule 9.160, Fla.R.App.P.
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