21 Fla. L. Weekly Supp. 566a
Online Reference: FLWSUPP 2106PARKInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where benefits were exhausted prior to medical provider filing suit, and there is no allegation or proof of bad faith, insurer’s motion for summary judgment is granted
TAMPA BAY ORTHOPAEDIC & SPINE, LLC (A/A/O JUSTIN PARKER), Plaintiff, vs. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 13-5782-SC-SOUTH. February 21, 2014. Honorable Walt Fullerton, Judge. Counsel: Ian Hudson, for Plaintiff. Fotini Z. Manolakos, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came upon to be heard on Defendant’s Motions for Final Summary Judgment and The Plaintiff’s Cross Motion for Sanctions of Attorney’s Fees and Costs, and the Court having heard argument of counsel on February 17, 2014, and after reviewing the record and all memoranda and submitted case law, and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED as follows:FACTUAL BACKGROUND
The following facts are undisputed:
1. This is a Personal Injury Protection (PIP) case arising out of an accident that occurred on February 8, 2012 involving USAA’s insured, Justin Parker.
2. Plaintiff, TAMPA BAY ORTHOPAEDIC & SPINE, LLC, submitted a medical bill to Defendant, USAA GENERAL INDEMNITY COMPANY, based on a policy of insurance that insured, Justin Parker, had with Defendant.
3. Pursuant to the policy of insurance, Defendant paid the insured’s medical bill at 80% of 200% of the Medicare Part (B) Fee Schedule for the service that were submitted. There is no dispute that the Plaintiff was paid in full for the bill that is the subject of the instant lawsuit.
4. Plaintiff, as assignee of USAA’s insured, filed the instant case on August 21, 2013.
5. USAA was served with the Complaint on October 17, 2013.
6. The record reveals that there was no allegation of bad faith in the complaint, nor a reply to Defendant’s affirmative defenses.
7. There is no allegation or proof of bad faith by the insurer or that benefits were not paid for covered losses of the insured pursuant to the policy of insurance. All bills Defendant deemed payable were paid in proper order by USAA pursuant to the PIP coverage within the insurance policy at issue and Florida Statute §627.736.
8. The insured’s $10,000 policy exhausted on or about August 16, 2012, one year before this suit was filed.CONCLUSIONS OF LAW
The insured is limited in its recovery by the terms of this contract. Plaintiff, as assignee of the contract insurance, is entitled to only those rights and benefits set forth in the policy and cannot gain more from the insurance company than the contractual benefit amount. See Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a].
It appears that in the instant case, Plaintiff, in its breach of contract suit, seeks benefits beyond the contractual amount set forth by the policy. USAA’s actions of continuing to pay the bills as submitted, and not setting aside monies to satisfy potential disputes, satisfies the purpose and design of the PIP statute, and allowed the insured to continue receiving medical treatment for his injuries. There is no requirement that an insurance company set aside a reserve fund for claims that are reduced or denied. See Dr. Robert D. Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. As such, Defendant is not responsible for the insured’s over use of the policy and the court has found that the assignees should look to the insured’s for any additional payments. See Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d at 6-7 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a].
The right to contest the denial of a PIP claim, absent a showing of bad faith, can be extinguished through an exhaustion of benefits by the insured after the claim has been submitted. See Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]. Additionally, In Sheldon, D.C. v. United Services Automobile Association, 55 So.3d 593 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D23a], the Court found in that case that Florida courts have established that, once an insurer has paid out the policy limits to the insured (or to various providers as assignees), it is not liable to pay any further PIP benefits, even those that are in dispute. (Emphasis added)
Plaintiff relies on a county court decision, Medical Specialists of Tampa Bay, LLC, DBA Gulf Coast Injury Center, a/a/o Aretha Redden, United Services Automobile Association, 18 Fla. L. Weekly Supp. 693a (May 25, 2011) in support of their Motion for Sanctions of Attorney’s Fees and Costs. The Pasco County Court found that sanctions against the Defendant were appropriate when Defendant did not inform counsel for the Plaintiff of the benefits exhaustion until more than six months after suit was filed. The instant Court does not find this case binding or persuasive sine the Defendant in this case advised of the exhaustion of benefits within four days of being served with the Complaint. Counsel for Plaintiff concedes that no attempt was made to contact the Defendant to determine if the insured had exhausted his PIP benefits. A reasonable investigation by the Plaintiff would have revealed that the insured’s benefits were exhausted before the lawsuit was filed.
Thus, taking into account the holdings on the issue of benefits exhausted from the First, Fourth, and Fifth District Courts of Appeal, the payments made on behalf of Justin Parker exhausted all PIP benefits and there is no evidence of bad faith, Plaintiff’s interest is extinguished. Because USAA made payments, which in turn exhausted the benefits under Justin Parker’s PIP Coverage, no action may be brought against USAA, nor should USAA be obligated to pay any attorney’s fees and costs.
Wherefore, for the foregoing reasons, the Court hereby orders and adjudges that:
1. Defendant’s Motion for Final Summary Judgment is hereby GRANTED;
2. Plaintiff’s Motion for Sanctions of Attorney’s Fees and Costs is DENIED.
3. Defendant shall go hence forth without day. The Court reserves jurisdiction to entertain any timely served motions to tax attorney’s fees and costs.
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