8 Fla. L. Weekly Supp. 733a
Insurance — Personal injury protection — Action by insured for lost wage claim denied by insurer because it had exhausted the PIP benefits under policy in payment to medical provider — Insured, not insurer, had the right to reapportion her claim for PIP benefits — Insurer acted improperly and breached insurance contract by negotiating medical benefits claim with medical provider which did not have an assignment of benefits rather than negotiating with insured — Insurer ordered to pay insured amount of claim paid to medical provider plus prejudgment interest
ANGELICA LEAL, Plaintiff, vs. PROGESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 00-4822 CC 26. August 23, 2001. Bonnie L. Rippingille, Judge. Counsel: Charles L. Vaccaro. Joseph F. Diaco, Jr.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENTAND FINAL JUDGMENT FOR PLAINTIFF
THIS CAUSE, having come before the Court for hearing on August 10, 2001 for Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the pleadings, heard the argument of counsel, and being otherwise duly advised in the premises, it is hereupon ORDERED AND ADJUDGED as follows:
On February 4, 2000, LEAL was involved in an automobile accident. At the time of the accident, LEAL had PIP insurance coverage through PROGRESSIVE EXPRESS INSURANCE COMPANY (“PROGRESSIVE”). The policy provided for PIP benefits pursuant to Florida Statute Sec. 627.736 and carried a $2,000.00 deductible. Plaintiff reported the accident to PROGRESSIVE on February 6, 2001. On February 17, 2001, PROGRESSIVE received notice from Plaintiff’s counsel that she was going to be making a claim for PIP benefits.
On April 6, 2001, PROGRESSIVE received notice from ANGELICA LEAL that she was going to make a claim for lost wages. Specifically, PROGRESSIVE received a letter from LEAL, a work status report from LEAL’s treating doctor, Jose L. Sievert, M.D., and eight pay stubs for LEAL. The Work Status report from Dr. Sievert indicated that LEAL was out of work from 2/4/00 through 3/12/00 (5 weeks). The pay stubs that were attached to the letter were for the period of January 3, 2000- January 30, 2000 (just preceding this accident) and November 15, 1999-December 19, 1999. The pay-stubs all indicated that Ms. Leal’s weekly wage was a minimum of $320.00, that she was paid at a rate of $8.00 per hour and worked a 40 hour work week on average (the bills also indicated overtime but the overtime lost wage is not being claimed by Plaintiff).
PROGRESSIVE never paid LEAL’s claim for lost wages. At the hearing, PROGRESSIVE claimed that it has no obligation to pay the lost wages because it had exhausted the PIP benefits under the policy.
PROGRESSIVE received a bill from Interscan, Inc. in the amount of $1,800.00 for date of service March 14, 2000. Although Defendant’s representative testified in deposition that the bill was received on May 1, 2000, Defendant argued at the hearing that the bill was received sometime in March. Either way however, it was undisputed that PROGRESSIVE did not receive any assignment of benefits from the medical provider. On May 19, 2000, PROGRESSIVE issued a check for the remaining PIP benefits ($892.00) and paid same directly to the medical provider bypassing LEAL, exhausting her benefits, and effectively shutting out her claim for lost wages.
The case law is clear that an insured has the right to reapportion her claim for PIP benefits. Bennett v. State Farm Mutual Automobile Insurance Company, 580 So.2d 217 (Fla. 2d DCA 1991). Therefore, it is not up to PROGRESSIVE to determine what the best interest of the insured is. PROGRESSIVE knew LEAL was claiming her lost wages as of April 6, 2000.
Moreover, there are only two persons that can own a PIP claim at any one time: either the insured or a medical provider who obtained an assignment of benefits. Oglesby v. State Farm Mutual Automobile Insurance Company, 781 So.2d 469 (Fla. 5th DCA 2001). Since it is admitted that Interscan, Inc. did not have an assignment of benefits, the only person with whom PROGRESSIVE could have negotiated the PIP benefits claim with was LEAL. They did not, and instead chose to negotiate the claim with a medical provider who did not have an assignment of benefits (and thus did not own the claim). This was improper and a breach of the insurance contract.
Therefore, Plaintiff’s Motion for Summary Judgment be and the same is hereby GRANTED.
Based on the foregoing, JUDGMENT is hereby entered in favor of Plaintiff, ANGELICA LEAL, and against Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, and Plaintiff, ANGELICA LEAL shall recover from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, the sum of Eight Hundred Ninety-Two and 00/100 Dollars ($892.00) with statutory prejudgment interest in the amount of One Hundred Ten and 64/100 Dollars ($110.64), for a total recovery of ONE THOUSAND TWO and 64/100 DOLLARS ($1002.64), which said total amount shall bear interest at a rate of 11% per year from August 10, 2001, for which let execution issue.
The Court retains jurisdiction over Plaintiff’s claim for attorneys’ fees and costs.
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