8 Fla. L. Weekly Supp. 229b
Insurance — Personal injury protection — 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 claim — Summary judgment improper where material issues of fact remain as to 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 operating procedure used by insurer and insurance industry
NU-WAVE DIAGNOSTICS, Appellant, v. FORTUNE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 00-9386 CACE (25). January 22, 2001. George A. Brescher, Judge. Counsel: Charles J. Kane, Greenspan & Kane, Boca Raton. Joshua Goodman. Diane H. Tutt.
OPINION
THIS MATTER came before the Court upon Appellant Nu-Wave Diagnostics’ (“Nu-Wave”) appeal of a county court order granting summary judgment in favor of the Appellee, Fortune Insurance Company (“Fortune”). The Court having considered the appeal, reviewed the file, and being otherwise fully advised in the premises, hereby finds and decides as follows:FACTS
Juan Ramirez was injured in an automobile accident in June 1996. At the time of his injuries, Mr. Ramirez was insured by Fortune and was entitled to personal injury protection (PIP) benefits. Nu-Wave treated Mr. Ramirez for his injuries, and on July 22, 1996, Mr. Ramirez assigned to Nu-Wave his PIP benefits available under his insurance policy. Nu-Wave submitted bills to Fortune for medical services rendered to Mr. Ramirez. Fortune, however, failed to pay those bills within 30 days. As a result, Nu-Wave sued Fortune in county court on October 17, 1996, seeking payment for medical services rendered. Fortune moved for summary judgment, claiming that at the time Nu-Wave instituted its suit, Fortune had exhausted the maximum PIP benefits available under Mr. Ramirez’s policy by making payments to other medical providers who submitted their bills after Fortune received Nu-Wave’s bills. The Court granted Fortune’s motion and entered final summary judgment in its favor. This appeal ensued.1
ANALYSIS
An insurer is not required to pay a bill within 30 days after notice if it is not a reasonable charge for a particular service of if the service was not necessary. AIU Ins. Co. v. Daidone, 760 So. 2d 1110, 1112 (Fla. 4th DCA 2000). In fact, if an insurer has refused to pay a bill within 30 days and does not obtain reasonable proof within the 30 day period to establish that is it is not responsible, the insurer still has the right to contest payment. Id. Here, Fortune apparently determined that Nu-Wave’s bill was unreasonable and/or unnecessary, and, therefore, refused to pay it. The record, however, contains no finding by the county court that Fortune presented reasonable proof that it was not responsible for the bill. Nor does the record establish whether Nu-Wave received formal notice of the denial of the claim or the reason for the denial, or whether the way Nu-Wave’s bill was handled is the standard procedure used by Fortune and the insurance industry. In short, there are material issues of fact which must be resolved.
As a general rule, the maximum liability of an insurer under an automobile policy is the amount contracted for, even if the insured’s losses greatly exceed the maximum amount of coverage. However, Nu-Wave does not challenge Fortune’s maximum liability under the policy. Rather, it challenges Fortune’s method and priority of making PIP payments to various medical providers. The core issue presented here, therefore, is whether an insurer is entitled to pay PIP benefits claims in any order it deems 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 the challenge to the denial of payment has been resolved. This Court, sitting in its appellate capacity, has already addressed this identical issue in Pinnacle Medical v. Allstate, Case No. 97-12340, 5 FLW Supp. 663a (Fla. 17th Judicial Circuit, April 23, 1998), wherein Judge W. Herbert Moriarty concluded:
If the procedure used in this case was allowed in each instance as a matter of law, it would permit an insurer to apply 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 favored. 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 [is] depleted). This Court does not claim that such a manipulation occurred in this case; the point is that without resolution of all material facts, such a determination cannot be made, precluding summary judgment.
This Court agrees with, and adopts, Judge Moriarty’s well-reasoned decision in Pinnacle.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that the summary final judgment is REVERSED and this cause is REMANDED to the county court for further proceedings consistent with this opinion. Nu-Wave’s motion for oral argument is DENIED, and its Motion for Attorney’s Fees is GRANTED contingent upon Nu-Wave ultimately prevailing in the lower proceedings.
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1Nu-Wave filed its initial brief on September 21, 2000. Fortune failed to file a response brief.
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