6 Fla. L. Weekly Supp. 792b
Insurance — Personal injury protection — Affirmative defense of exhaustion of benefits waived by failure to include defense in pleadings — Interest at statutory rate owed for bills which were partially paid more than thirty days after receipt by insurer — Plaintiff’s motion for summary judgment concerning reduction of charges granted
BAYSIDE HEALTHCARE CENTER, INC. (As Attorney-In-Fact for Norma Williams), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court of the 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 97-13720-SC, Division I. March 31, 1999. Charlotte W. Anderson, Judge. Counsel: Meena M. Lopez, Patrick and Lopez, Tampa, for Plaintiff. Mark A. Broderick, for Defendant.
ORDER
THIS CAUSE having come before the Court on March 15, 1999, on Plaintiff’s motion for summary judgment and Defendant’s motion for summary judgment and the Court having heard argument of counsel and otherwise being fully advised in the premises, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s motion for summary judgment is denied. This Court finds that Defendant has waived its exhaustion of benefits defense by failing to include this affirmative defense in its pleadings.
2. Plaintiff’s motion for summary judgment is granted, in part. By Defendant’s own admission, Defendant owes statutory interest on bills for dates of service of August 8, 1997, and August 13, 1997, because partial payment of these bills was made more than thirty (30) days after Defendant received these bills. In addition, Plaintiff’s motion for summary judgment concerning the reduction of charges is granted pursuant to United Automobile Ins. Co. v. Viles, 24 Fla. L. Weekly D14 (Fla. 3d DCA 1998).
3. The Court reserves jurisdiction to determine the amount of damages awardable to the Plaintiff in this matter.
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