County Civil Court: INSURANCE – Exhaustion of Benefits – English Rule for establishing priorities of assignees – an insured cannot maintain a cause of action against the insurer once benefits are exhausted unless certain criteria are met – in cases where bad faith is not alleged, insured must promptly notify the insurer that an amended claim will be forthcoming when insurer tenders partial payment of claim – insured must also refuse partial payment or escrow such funds until claim has been fully adjudicated – Summary Judgment affirmed. Nucci v. Progressive Express Ins. Co., No. 03-5049AP-88A (Fla. 6th Cir. App. Ct. May 18, 2006).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
ROBERT C. NUCCI, M.D., P.A.,
on behalf of Carl Kalinsky,
vs. Appeal No.03-5049AP-88A
Appeal from Summary Judgment
Pinellas County Court
Judge Karl B. Grube
Scott F. Zimmer, Esquire
Attorney for Appellant
Lisa S. Delvecchio, Esquire
Heather C. Goodis, Esquire
Attorneys for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by the Appellant, Robert C. Nucci, M.D., P.A., on behalf of Carl Kalinsky (Nucci), from the Order Granting Summary Judgment, entered on August 18, 2003, in favor of the Appellee, Progressive Express Insurance Company (Progressive). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
The undisputed facts are that the insured, Carl Kalinsky, received treatment and services from Nucci as a result of injuries sustained in a motor vehicle accident. Kalinsky was covered under a policy of insurance issued by Progressive which provided for $10,000.00 in PIP benefits with no medical payments coverage and no deductible. Pursuant to an assignment of benefits, Nucci submitted its bills to Progressive for payment. Progressive reduced some of the bills and remitted payment to Nucci based on the reduction.
On December 3, 2002, Nucci filed suit against Progressive generally alleging that he was owed reasonable charges for treatment and services provided. The complaint did not set forth specific dates of service or bills for which payment was sought, nor did the complaint allege bad faith. At the time Nucci filed suit, there were sufficient PIP benefits left to cover the entire bills. On February 25, 2003, Progressive exhausted the remaining benefits by paying bills submitted by Kalinsky’s other medical providers. Based on the exhaustion of benefits, Progressive moved for summary judgment arguing that it owed no further benefits.
After a hearing on the matter, the trial court found that there was no evidence that Nucci instructed Progressive not to pay other medical benefits, nor specified in its complaint those benefits Nucci sought payment for. The trial court found that there was no evidence that Progressive’s exhaustion of benefits was undertaken in bad faith and found that “the Defendant was obligated by law to pay benefits in a timely fashion and did so, thereby exhausting the insured’s benefits pursuant to the policy of insurance and Florida law.” The trial court determined that the “English Rule” did not apply as Nucci never gave Progressive notice as to what particular bills were in dispute and accepted reduced payment. The trial court concluded, as a matter of law, that Nucci could not maintain his cause of action since the benefits had been exhausted.
Before this Court, Nucci argues that summary judgment was improper as Progressive was on notice that Nucci was seeking reimbursement for reduced benefits when it filed suit, that the trial court did not correctly apply the English Rule for establishing priorities of assignees, and that a genuine issue remains regarding whether Progressive was justified in reducing Nucci’s bills prior to exhaustion. In addressing these issues, the Court reiterates the well-settled law that summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail; even the slightest doubt must be resolved against the moving party. See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995).
The Court finds that there has been a split among trial and circuit appellate courts on the application of the English Rule and whether an insured can maintain a cause of action against an insurer once benefits are exhausted. Several courts have found that even though the insured cannot recover any more PIP benefits since such benefits have been exhausted, the insured can still maintain a cause of action against the insured for statutory damages, including attorney’s fees, for the insurer’s late payment. See e.g. Sanders v. State Farm Mutual Automobile Insurance Company, 10 Fla. L. Weekly Supp. 789 (Fla. 17th Cir. App. Ct. June 5, 2003); First Choice Medical Center v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 994 (Fla. Seminole Cty. Ct. June 27, 2005); Occupational and Rehabilitation Center v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 75 (Fla. Duval Cty. Ct. Nov. 2, 2004). Other courts have gone even further, holding that an insurer must pay overdue claims, even when benefits have been exhausted, if there is a determination that the insurer unlawfully withheld, or misapplied, benefits. See e.g. Physicians First Choice Interpretation, Inc. v. Allstate Insurance Company, 10 Fla. L. Weekly Supp. 675 (Fla. 11th Cir. App. Ct. July 15, 2003); Ocean Ridge Chiropractic, Inc. v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 578 (Fla. Broward Cty. Ct. April 1, 2004).
On the other end of the spectrum, some courts have held that the insured cannot maintain a cause of action to recover PIP benefits when the insured’s benefits are exhausted after the medical provider filed suit against the insurer, the insured/medical provider did not provide notice to the insurer to set aside the disputed amount, and there was no evidence that insurer acted in bad faith in exhausting benefits. See e.g. Premier Open MRI, LLC v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 839 (Fla. Hillsborough Cty. Ct. May 26, 2004), appeal dismissed, 911 So.2d 1243 (Fla. 2d DCA 2005); Vincent DiCarlo, M.D. & Associates v. American Home Assurance Co., 11 Fla. L. Weekly Supp. 305 (Fla. 13th Cir. App. Ct. Jan. 20, 2004); Orthopaedic Specialties of Tampa Bay, P.A. v. Progressive Express Insurance Company, 10 Fla. L. Weekly 1018 (Fla. Pinellas Cty. Ct. Oct. 8, 2003); Neuroscience DX, Inc. v. Deerbrook Insurance Company, 10 Fla. L. Weekly Supp. 827 (Fla. Pinellas Cty. Ct. Aug. 11, 2003); Neuro-Imaging Associates, P.A. v. Nationwide Insurance Company of Florida, 10 Fla. L. Weekly Supp. 738 (Fla. Palm Beach Cty. Ct. Jan. 7, 2002).
The Court finds that the only binding decision on this Court is Simon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4th DCA 2005), which follows the aforementioned line of cases that an insured cannot maintain a cause of action against the insurer once benefits are exhausted unless certain criteria are met. In Simon, the medical provider, a physician, Robert Simon, accepted a reduced payment from the insurer, Progressive Express Insurance Company, for services rendered to the insured following an automobile accident. See id. at 449. Before paying Simon, Progressive informed him and other medical providers that it would reconsider denied or reduced claims if the provider resubmitted the claims with new information. See id. Simon resubmitted his claim, but was informed by Progressive that the funds had already been committed to another provider because Simon accepted partial payment and had failed to advise Progressive that he would be resubmitting his claim. See id. Simon filed suit against Progressive claiming that Progressive was under an obligation to hold the funds indefinitely to cover the partially denied claims. See id. Simon argued that the “English Rule” applied and that Progressive should not have paid other providers when Simon filed his claim before actual disbursement of committed funds, even when Progressive dispersed such funds to other providers whose treatment commenced earlier than Simon’s. See id.
In affirming the county court’s decision to grant summary judgment in favor of Progressive, the Fourth District held that Simon did not have a priority claim against the funds that remained undisbursed as he had accepted partial payment without notifying the insurance company that he would be resubmitting his claim. See id. at 450. The Fourth District held:
If we were to accept Simon’s theory that a “reserve” or “hold” provision must be automatically applied to any available funds at the time a claim is submitted, it would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers with properly submitted claims. Under such a theory, all potential payments to a service provider that were denied, or were subject to a reduction, would have to be held in reserve until the statute of limitations period expired or a suit was filed and concluded. This would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s “prompt pay” provisions. Id.
Although there are some factual differences between Simon and the present case,
the Court finds that the Simon analysis still applies. Pursuant to Simon, the Court finds that in cases where bad faith is not alleged, in order to avoid summary judgment and to secure the right to litigate reduced claims, an insured/medical provider must, at a minimum, promptly notify the insurance company that an amended claim will be forthcoming. Further, in addition to notifying the insurer that the medical provider will be seeking the outstanding balance, the Simon analysis puts the burden on the medical provider to either refuse partial payment or at least escrow such funds until the claim has been fully adjudicated.
Hence, under the undisputed facts presented in this case, summary judgment in favor of Progressive must be affirmed. Nucci accepted partial payment and never notified Progressive that an amended claim would be forthcoming. Indeed, the complaint filed by Nucci, the first notice to Progressive that it would be seeking unpaid PIP benefits, is silent as to what funds were outstanding and were being sought by Nucci. Even resolving all doubts against Progressive, the Court finds that, as a matter of law, the trial court’s decision must be affirmed. See Hervey, 650 So.2d at 646.
Therefore, it is,
ORDERED AND ADJUDGED that the Order Granting Summary Judgment is affirmed. It is further
ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fee is denied.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of May 2006.
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge Henry J. Andringa
County Court Administrative Judge
Scott E. Zimmer, Esquire
1234 9th Street North
St. Petersburg, FL 33705
Lisa S. Delvecchio, Esquire
Heather C. Goodis, Esquire
6464 First Avenue North
St. Petersburg, FL 33710
 Neither party disputes that this order is final for purposes of appeal.
 The Court notes that the above-styled appeal was stayed pending the outcome of Premier Open MRI, LLC. In dismissing the appeal, the Second District declined to answer two questions certified by the county court, to wit: (1) “ Is an insured’s properly noticed and filed lawsuit for no-fault benefits, including claims for interest, costs and attorney’s fees, completely extinguished by subsequent payments by the insurer which exhaust the remaining no-fault policy benefits?”, and; (2) “Absent statutory or contractual authority, to prevent an extinguishment of his lawsuit due to subsequent exhaustion of no-fault benefits, may an insured or his assigns, request the insurer to escrow funds which are in dispute, as addressed in Vincent DiCarlo, M.D. & Assoc.’s v. American Home Assur. Co., 11 Fla. L. Weekly Supp. 305b (Fla. 13th Jud. Cir. Jan. 20, 2004) and MTM Diagnostics, Inc. v. State Farm Mut. Auto. Ins. Co., 9 Fla. L. Weekly Supp. 581e (Fla. 13th Jud. Cir., Nov. 20, 2000) and, if requested, what are the obligations of the insurer, if any, to the insured and the various providers with or without assignments of benefits and with or without requests to escrow funds executed before and after the escrow request relied on in suits?”