9 Fla. L. Weekly Supp. 581e
Insurance — Personal injury protection — Medical provider to whom insured assigned rights against insurer had no further interest in insurance contract once PIP benefits were exhausted — Priority of payment — Assignee’s claim had priority over insured’s wage claims where assigned claim was submitted first — Insurer’s partial payment of what it deemed to be a reasonable amount of assignee’s claim satisfied priority of payment requirement — Where assignee did not request insurer to escrow unpaid amount in dispute, insurer was obligated under its contractual duties to the insured to continue paying other applicable claims, although that exhausted available benefits — Insurer was not required to obtain medical report as prerequisite to contesting reasonableness of bills submitted by provider — No error in entering final summary judgment for insurer
MTM DIAGNOSTIC, INC., etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 00-238-X. November 20, 2000. An Appeal from the County Court in and for Hillsborough County; Marva L. Crenshaw, Judge. Counsel: Stephen W. Carter, Winter Park, for Appellant. Dale T. Gobel, Drage, de Beaubien, Knight, Simmons, Mantazaris & Neal, Orlando, for Appellee.
(Barton, J.) The issues presented in this case are whether the trial court erred in entering final summary judgment for Appellee based on exhaustion of insurance benefits and in failing to enter final summary judgment for Appellant due to the absence of a medicalreport from the Appellee. We affirm.
The following facts are undisputed. Robyn Dorn was insured under a personal insurance protection (“PIP”) policy written by Appellee. Appellant provided medical services to Ms. Dorn for injuries she sustained in an automobile accident that occurred on September 25, 1998. Ms. Dorn assigned her PIP benefits to Appellant.*
On November 13, 1998, Appellant submitted a claim to Appellee for medical services provided to Ms. Dorn. Appellee paid what it determined to be a reasonable amount, based on an internal claim analysis program (Medicode). On January 7, 1999, the insured requested that Appellee reserve the rest of her PIP coverage for lost wages. On January 19, 1999, Appellant filed the instant lawsuit. On February 15, 1999, the insured’s PIP benefits were exhausted by payment of the insured’s wage loss claims.
Both parties movedfor summary judgment. Appellant’s motion is based on F.S. §627.736(7) which requires that a PIP carrier receive a medical report before paying less than the entire medical bill submitted. Appellee moved for summary judgment because PIP benefits were exhausted after the payment of the insured’s wage claim. The trial court entered summary judgment in favor of Appellee.
DID THE TRIAL COURT ERR IN ENTERINGFINAL SUMMARY JUDGMENT FOR APPELLEEBASED ON EXHAUSTION OF BENEFITS?
Under an assignment, the assignee obtains no greater rights under the contract than those rights enjoyed by the assignor. Resolution Trust Corp. v. Broad & Cassel, P.A., 889 F. Supp. 475 (M.D. Fla. 1995). Once a medical provider obtains an assignment ofPIP benefits from an insured, the medical provider obtains the right to make a claim to the insurer under the insurance contract. State Farm Fire and Casualty v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990). The assignment of rights does not discharge the assignor from its obligations to the other original party to the assigned contract. See 6 Am. Jur. 2d Assignments section 165 (1999) citing Navin v. New Colonial Hotel, 90 N.E. 2d 128 (1950); Vetter v. Security Continental Ins. Co., 567 N.W. 2d 516 (Minn. 1997). Therefore, Appellant has recourse against the insured for claims of payment after its rights under the assignment are exhausted.
Appellee/assignee’s interests are extinguished when the interests of the insured/assignor are extinguished. When PIP benefits are exhausted, the insured has no further interest in the contract. To hold otherwise would create additional coverage and make State Farm responsible for more than which it was obligated by the policy ofinsurance.
The remaining question is whether the exhaustion of PIP benefits wasproper under Appellee’s statutory and contractual obligations. When an assignment has been made, the priority of payment will be to the assigned claim before the insured’s claim if the assigned claim was submitted prior to the insured’s claim. State Farm Fire and Casualty Co. v. Ray, supra at 813. It is the Appellant’s position that Appellee should not have paid insured’s wage claims, which exhausted the PIP benefits, until it first paid the previously submitted claims of the Appellant. Since Appellant did pay what it determined to be a reasonable amount to Appellee prior to paying the insured’s wage claims, we must determine whether Appellant’s partial payment to Appellant satisfies the requirement under Ray that the assignee be paid first.
The decision in AIU Insurance Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000) is persuasive. In Daidone, an insured sought PIP benefits after the insurer failed to obtain a timely medical report stating that medical care was unreasonable. The minor difference in Daidone is that the insured, rather than the assignee of the insured, brought the action to recover unpaid benefits: The Daidone court held that the 30 day period in F.S. § 627.736(4) “applies only to benefits which are reasonable and necessary as a result of the accident.” The insurer’s failure to obtain proof of unreasonableness within the 30 dayperiod does not preclude the insurer of its right to contest the payment. Ibid., at p. 1112. See also, Jones v. State Farm Mut. Auto Ins. Co., 694 So. 2d 165, 166 (Fla. 5th DCA 1997). Contra, Perez v. State Farm Fire and Cas. Co., 746 So. 2d 1123 (Fla. 3rd DCA 1999).
Under the Daidone rationale, the Appellee’s partial payment to Appellant satisfies the priority of payment required under Ray. After partial payment was made, Appellant did not request Appellee to escrow the unpaid amount in dispute. Without an escrow request from Appellant, Appellee was obligated under its contractual duties to the insured to continue paying any applicable claims.
Appellee satisfied its statutory obligation under F.S. § 627.736 and its contractual obligations to the insured. Therefore, the trial court did not err in entering final summary judgment for Defendant based on exhaustion of benefits.
DID THE TRIAL COURT ERR IN FAILING TO ENTER SUMMARY JUDGMENT FOR APPELLANT DUE TO LACK OF MEDICAL REPORT?
As discussed above, Appellee was not required to obtain a medical report as a prerequisite to contest the amount (reasonableness) of the bills submitted by Appellant. Thus, the trial court did not err in failing to enter summary judgment for Plaintiff due to its failure to obtain a medical report.
CONCLUSION
Because the learned trial judge correctly granted Appellee’s Motion for Summary Judgment and denied Appellant’s Motion for Summary Judgment, theFinal Summary Judgment appealed herein is
AFFIRMED. (GRECO and GALLAGHER (Senior Judge), JJ., concur.)
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*Appellee argues that the record does not support Appellant’s claim that it was the insured’s assignee. However, since State Farmdid not argue below that no assignment existed, it is precluded from doing so on appeal. See Dobler v. Worrell, 401 So.2d 1322 (Fla. 1981); East Naples Water System, Inc. v. Board of County Commissioners of Collier County, 457 So.2d 1057, 1060 (Fla. 2d DCA 1984). Moreover, as the party opposing a motion for summary judgment, Appellant is entitled to the inference that a validassignment exists. See U.S. Fire Ins. Co. v. Progressive Cas. Ins. Co., 362 So. 2d 414 (Fla. 2d DCA 1978); Aagaard-Juergensen, Inc. v. Lettelier, 540 So. 2d 224 (Fla. 5th DCA 1989).
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