Preview
Filing # 139661727 E-Filed 12/03/2021 11:20:15 AM
LCM IMAGING, INC. A/A/O Kelly Byron, IN THE COUNTY COURT IN AND
FOR HILLSBOROUGH, FLORIDA
Plaintiff,
vs. Case No.: 21-CC-045936 (H)
GARRISON PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant,
/
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
REGARDING EXHAUSTION
Defendant, GARRISON PROPERTY & CASUALTY INSURANCE COMPANY
(hereinafter “Defendant” by and through the undersigned counsel, pursuant to Rule 1.510(c), Fla.
R. Civ. P., hereby files its Motion for Final Summary Judgment stating there are no genuine issues
of material fact and that Defendant is entitled to Judgment as a matter of law, and as grounds,
states as follows:
UNDISPUTED FACTS
1. Plaintiff, LCM IMAGING, INC. A/A/O Kelly Byron (hereinafter “Plaintiff”) filed
this suit to recover personal injury protection (PIP) benefits allegedly owed to it as an assignee of
Kelly Byron.
2. Defendant issued a Florida automobile insurance policy, policy number 01160 63
34R 7103 8, effective dates January 24, 2017 through July 24, 2017 providing personal injury
protection benefits in the amount of $10,000 with no deductible to Kelly Byron, subject to the
terms and conditions of the insurance policy and applicable state law. A Copy of Policy and
Declarations Page will be filed in support of Defendant’s Motion for Final Summary Judgment
and provided upon request.
3. Claimant was involved in a car accident on April 13, 2017, for which Garrison
Property & Casualty Insurance Company extended PIP benefits under claim number 11606334,
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
LR# 18. The affidavit of the Corporate Representative will be filed in support of Defendant’s
Motion for Final Summary Judgment and provided upon request.
4. Claimant treated with Plaintiff for dates of service August 17, 2017, for which
Garrison Property & Casualty Insurance Company issued reimbursement. A PIP log and
Explanation of Reimbursement will be filed in support of Defendant’s Motion for Final Summary
Judgment and provided upon request.
5. On November 6, 2017, all available PIP benefits under the subject policy for
insured Kelly Byron were paid rendering all personal injury protection benefits exhausted. A PIP
log and Explanation of Reimbursement will be filed in support of Defendant’s Motion for Final
Summary Judgment and provided upon request.
6. There were no payments on stale dates of service to other providers.
7. Defendant did not act in bad faith in exhausting available PIP benefits.
8. The Fourth District Court of Appeals ruled that alleged improper or incorrect
payments to other providers besides the Plaintiff do not qualify as bad faith for purposed of
challenging the exhaustion of benefits defense.
“[E]xcept for untimely payments, we would hold that an insurance
company’s ‘improper’ payments to another provider do not
constitute bad faith sufficient to overcome the insurance company’s
exhaustion of benefits defense … we construe that to mean bad faith
in the handling of the claim at issue, not a claim by a third party …
in other words, the conduct of the insurance company must be
directed at the provider attempting to avoid the exhaustion of
benefits claim.”
Progressive Select Ins. Co. v. Dr. Rahat Faderani, DO, MPH, P.A., Case No 4d21-
232 (4th DCA Nov. 10, 2021).
9. “Post-suit exhaustion of benefits should be treated no differently than pre-suit
exhaustion of benefits, as long as the benefits' compensability under PIP has not been established.
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
Once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further
liability on unresolved, pending claims, absent bad faith in the handling of the claim by the
insurance company.” Northwoods Sports Medicine and Physical Rehab. v. State Farm, 137 So. 3d
1049, 1056 (Fla. 4th DCA 2014).
10. Once the assignor’s personal injury benefits have been exhausted, the insurer
having made full and proper payment of all benefits due under the policy of insurance and in
accordance with Florida Statute, there can be no further recovery in excess of this amount. Id.
11. All documents attached have been verified by affidavit of the litigation adjuster,
assigned to the claims file, and the affidavit will be filed under separate cover and incorporated
hereto.
MEMORANDUM OF LAW
A. SUMMARY JUDGMENT STANDARD
It is well settled that summary judgment is proper when there are no genuine issues as to
any material fact and when the moving party is entitled to judgment as a matter of law. Florida
Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). “The judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials
as would be admissible in evidence on file show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter or law.” Fla. R. Civ. P. 1.510(c).
A movant for summary judgment has the initial burden of demonstrating the nonexistence
of any genuine issue of material fact, but once competent evidence to support the motion is
tendered, the opposing party must come forward with counterevidence sufficient to reveal a
genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla. 1979); Kolnick v.
Fountainview Ass’n, Inc. # 2, 737 So. 2d 1192 (Fla. 3d DCA 1999). It is not enough for the
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas
System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997).
B. ARGUMENT
“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.” Sheldon v. United Serv. Auto. Assoc., 55 So. 3d 593 (Fla. 1st DCA 2010)
(citing Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005)). See also,
USAA Cas. Ins. Co. v. Shiver, 19 Fla. L. Weekly Supp. 780a (1st Cir. App. 2011), (finding that the
insurance company met its obligation under the policy, even though it made a payment to another
medical provider which exhausted benefits after plaintiff’s suit was filed and served). The only
exception is if there is a showing of bad faith, of which there is no allegation, much less, evidence,
in this case. Progressive Am. Ins. Co. v. Stand-Up MRI, 990 So.2d 3 (Fla. 5th DCA 2008).
In Shiver, the Court held that the analysis of an exhaustion defense is “whether the
insurance company had fulfilled its contractual obligations,” Shiver, 19 Fla. L. Weekly Supp. 780a.
The Shiver Court further held that “once such a contract has been fulfilled, the reason for a denial
of a claim is no longer relevant.” Id. This is consistent with other binding appellate case law
holding that there is no “requirement that an insurance company set aside a ‘reserve’ fund for
claims that are reduced or denied.” Simon v. Progressive Express Ins. Co., 904 So. 2d 449, 450
(Fla. 4th DCA 2005).
In the PIP context, the above-described proposition applies even where benefits were
available at the time the benefits were denied or reduced. In Northwoods Sports Med. & Physical
Rehab., Inc. v. Daniel N. the Fourth District Court of Appeal held that, “once the PIP benefits are
exhausted through the payment of valid claims, an insurer has no further liability on unresolved,
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4
pending claims, absent bad faith in the handling of the claim by the insurance company.”
Northwoods Sports Med. & Physical Rehab., Inc. v. Daniel N., 137 So. 3d 1049 (Fla. 4th DCA
2014). The legislative intent of the PIP statute was to promote prompt payment of medical bills
and to construe any type of reserve for disputed or denied bills would be contradictory to that intent
Id. at 1056. The Northwoods Court extended the reasoning found in the holdings of Simon, Stand-
Up MRI, and Sheldon.
In Stand-Up MRI, the Court found that the Plaintiff could not be entitled to more rights and
benefits than those set forth in the policy and could not gain more from the insurance company
than the contractual benefit amount. Stand-Up MRI at 3. In reinstating the judgment in favor of the
insurer, the Court held:
The Defendant did nothing wrong here. They were under a contract
to the insured for a limited amount. They paid that amount in total.
They are not responsible for the insured’s over-use of this policy.
The Defendant did not gain anything out of their actions. They fully
performed their contract with the insured. It is to the insured that
the assignees should look for any additional payments. Id. at 6, 7.
Moreover, there is no bad faith arising from the insurer’s payment of the insured’s
medical bills in the ordinary course of treatment and submission of those bills. The Stand-Up
MRI Court further held:
There is no logical basis for any allegation of bad faith here, on the
part of Defendant; they saved no money by their actions; what is the
basis of their wrongdoing? It surely can’t be that they were careful
about the amount of the payments that they made to a given provider
as other providers’ claims continued to come in from more assignees
demanding payment out of the diminishing fund pool, which ran out.
The Court cannot see why the Defendant should be punished for
having fully performed their contract nor why they should have to
pay more than 100% of the benefits because the assignor kept
assigning and the assignees kept accepting the assignments. Legally,
unless the assignment was an absolute assignment of all of the
benefits, the Defendant did not have the luxury of holding off in the
payment of legitimate bills from other providers while there are
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5
funds available, until sometime in the future it is determined either
by a court or further investigation by the Defendant, that it should
have paid more to the Plaintiff. If it had done that, there would be
as many lawsuits as there were providers who didn’t get fully paid.
This is not a reasonable requirement to hold over an insurance
company.
Id. at 7.
Additionally, the Third District Court of Appeals held that there is no exception to
exhaustion for claims in which an adjuster made a mistake in reimbursement or adjusted the claim
based on a current, but incorrect, interpretation of the law. Geico Indem. Co. v. Gables Ins.
Recovery, Inc., 159 So. 3d 151, 155 (Fla. 3d DCA 2014). Instead, the exception is limited only to
instances in which reimbursement is clearly prohibited under the policy and the statute. Id. As it
stands, benefits are properly exhausted the payments have been reimbursed in good faith and on
timely bills.
Here, there is no allegation and no evidence of bad faith or payments on stale dates of
service, and it is undisputed that the Defendant paid out a total of $10,000 in Personal Injury
Protection benefits and additional personal injury benefits based on the policy issued to its insured.
As a result, all benefits to which she may be entitled have been exhausted. Accordingly,
Defendant’s Motion for Final Summary Judgment should be granted.
Wherefore, Defendant, requests this court to enter an order granting final summary
judgment in favor of GARRISON PROPERTY & CASUALTY INSURANCE COMPANY and
against Plaintiff, and for any other and further relief this court deems fair and just.
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
Florida e-Portal on December 3, 2021 to: Amy Sullivan, Esquire, Morgan & Morgan, 3705 N.
Himes Ave, Tampa, FL 33607, asullivan@forthepeople.com.
MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN
201 East Kennedy Blvd., Suite 1100
Tampa, FL 33602-5864
Tel: (813) 898-1800
Fax: (813) 221-5026
Primary: LJPinkerton@MDWCG.com
Secondary: PIPServiceTPA@MDWCG.com
By: /s/ Laura J. Pinkerton
Laura J. Pinkerton, Esq.
Florida Bar No.: 1010825
Garrison Property & Casualty Insurance Company
12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7
Preview
Filing # 139661727 E-Filed 12/03/2021 11:20:15 AM LCM IMAGING, INC. A/A/O Kelly Byron, IN THE COUNTY COURT IN AND FOR HILLSBOROUGH, FLORIDA Plaintiff, vs. Case No.: 21-CC-045936 (H) GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, Defendant, / DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING EXHAUSTION Defendant, GARRISON PROPERTY & CASUALTY INSURANCE COMPANY (hereinafter “Defendant” by and through the undersigned counsel, pursuant to Rule 1.510(c), Fla. R. Civ. P., hereby files its Motion for Final Summary Judgment stating there are no genuine issues of material fact and that Defendant is entitled to Judgment as a matter of law, and as grounds, states as follows: UNDISPUTED FACTS 1. Plaintiff, LCM IMAGING, INC. A/A/O Kelly Byron (hereinafter “Plaintiff”) filed this suit to recover personal injury protection (PIP) benefits allegedly owed to it as an assignee of Kelly Byron. 2. Defendant issued a Florida automobile insurance policy, policy number 01160 63 34R 7103 8, effective dates January 24, 2017 through July 24, 2017 providing personal injury protection benefits in the amount of $10,000 with no deductible to Kelly Byron, subject to the terms and conditions of the insurance policy and applicable state law. A Copy of Policy and Declarations Page will be filed in support of Defendant’s Motion for Final Summary Judgment and provided upon request. 3. Claimant was involved in a car accident on April 13, 2017, for which Garrison Property & Casualty Insurance Company extended PIP benefits under claim number 11606334, 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 LR# 18. The affidavit of the Corporate Representative will be filed in support of Defendant’s Motion for Final Summary Judgment and provided upon request. 4. Claimant treated with Plaintiff for dates of service August 17, 2017, for which Garrison Property & Casualty Insurance Company issued reimbursement. A PIP log and Explanation of Reimbursement will be filed in support of Defendant’s Motion for Final Summary Judgment and provided upon request. 5. On November 6, 2017, all available PIP benefits under the subject policy for insured Kelly Byron were paid rendering all personal injury protection benefits exhausted. A PIP log and Explanation of Reimbursement will be filed in support of Defendant’s Motion for Final Summary Judgment and provided upon request. 6. There were no payments on stale dates of service to other providers. 7. Defendant did not act in bad faith in exhausting available PIP benefits. 8. The Fourth District Court of Appeals ruled that alleged improper or incorrect payments to other providers besides the Plaintiff do not qualify as bad faith for purposed of challenging the exhaustion of benefits defense. “[E]xcept for untimely payments, we would hold that an insurance company’s ‘improper’ payments to another provider do not constitute bad faith sufficient to overcome the insurance company’s exhaustion of benefits defense … we construe that to mean bad faith in the handling of the claim at issue, not a claim by a third party … in other words, the conduct of the insurance company must be directed at the provider attempting to avoid the exhaustion of benefits claim.” Progressive Select Ins. Co. v. Dr. Rahat Faderani, DO, MPH, P.A., Case No 4d21- 232 (4th DCA Nov. 10, 2021). 9. “Post-suit exhaustion of benefits should be treated no differently than pre-suit exhaustion of benefits, as long as the benefits' compensability under PIP has not been established. 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 Once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, pending claims, absent bad faith in the handling of the claim by the insurance company.” Northwoods Sports Medicine and Physical Rehab. v. State Farm, 137 So. 3d 1049, 1056 (Fla. 4th DCA 2014). 10. Once the assignor’s personal injury benefits have been exhausted, the insurer having made full and proper payment of all benefits due under the policy of insurance and in accordance with Florida Statute, there can be no further recovery in excess of this amount. Id. 11. All documents attached have been verified by affidavit of the litigation adjuster, assigned to the claims file, and the affidavit will be filed under separate cover and incorporated hereto. MEMORANDUM OF LAW A. SUMMARY JUDGMENT STANDARD It is well settled that summary judgment is proper when there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter or law.” Fla. R. Civ. P. 1.510(c). A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, but once competent evidence to support the motion is tendered, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla. 1979); Kolnick v. Fountainview Ass’n, Inc. # 2, 737 So. 2d 1192 (Fla. 3d DCA 1999). It is not enough for the 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 opposing party to merely assert that an issue does exist. Landers, 370 So. 2d, at 370; Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997). B. ARGUMENT “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.” Sheldon v. United Serv. Auto. Assoc., 55 So. 3d 593 (Fla. 1st DCA 2010) (citing Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005)). See also, USAA Cas. Ins. Co. v. Shiver, 19 Fla. L. Weekly Supp. 780a (1st Cir. App. 2011), (finding that the insurance company met its obligation under the policy, even though it made a payment to another medical provider which exhausted benefits after plaintiff’s suit was filed and served). The only exception is if there is a showing of bad faith, of which there is no allegation, much less, evidence, in this case. Progressive Am. Ins. Co. v. Stand-Up MRI, 990 So.2d 3 (Fla. 5th DCA 2008). In Shiver, the Court held that the analysis of an exhaustion defense is “whether the insurance company had fulfilled its contractual obligations,” Shiver, 19 Fla. L. Weekly Supp. 780a. The Shiver Court further held that “once such a contract has been fulfilled, the reason for a denial of a claim is no longer relevant.” Id. This is consistent with other binding appellate case law holding that there is no “requirement that an insurance company set aside a ‘reserve’ fund for claims that are reduced or denied.” Simon v. Progressive Express Ins. Co., 904 So. 2d 449, 450 (Fla. 4th DCA 2005). In the PIP context, the above-described proposition applies even where benefits were available at the time the benefits were denied or reduced. In Northwoods Sports Med. & Physical Rehab., Inc. v. Daniel N. the Fourth District Court of Appeal held that, “once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 pending claims, absent bad faith in the handling of the claim by the insurance company.” Northwoods Sports Med. & Physical Rehab., Inc. v. Daniel N., 137 So. 3d 1049 (Fla. 4th DCA 2014). The legislative intent of the PIP statute was to promote prompt payment of medical bills and to construe any type of reserve for disputed or denied bills would be contradictory to that intent Id. at 1056. The Northwoods Court extended the reasoning found in the holdings of Simon, Stand- Up MRI, and Sheldon. In Stand-Up MRI, the Court found that the Plaintiff could not be entitled to more rights and benefits than those set forth in the policy and could not gain more from the insurance company than the contractual benefit amount. Stand-Up MRI at 3. In reinstating the judgment in favor of the insurer, the Court held: The Defendant did nothing wrong here. They were under a contract to the insured for a limited amount. They paid that amount in total. They are not responsible for the insured’s over-use of this policy. The Defendant did not gain anything out of their actions. They fully performed their contract with the insured. It is to the insured that the assignees should look for any additional payments. Id. at 6, 7. Moreover, there is no bad faith arising from the insurer’s payment of the insured’s medical bills in the ordinary course of treatment and submission of those bills. The Stand-Up MRI Court further held: There is no logical basis for any allegation of bad faith here, on the part of Defendant; they saved no money by their actions; what is the basis of their wrongdoing? It surely can’t be that they were careful about the amount of the payments that they made to a given provider as other providers’ claims continued to come in from more assignees demanding payment out of the diminishing fund pool, which ran out. The Court cannot see why the Defendant should be punished for having fully performed their contract nor why they should have to pay more than 100% of the benefits because the assignor kept assigning and the assignees kept accepting the assignments. Legally, unless the assignment was an absolute assignment of all of the benefits, the Defendant did not have the luxury of holding off in the payment of legitimate bills from other providers while there are 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 funds available, until sometime in the future it is determined either by a court or further investigation by the Defendant, that it should have paid more to the Plaintiff. If it had done that, there would be as many lawsuits as there were providers who didn’t get fully paid. This is not a reasonable requirement to hold over an insurance company. Id. at 7. Additionally, the Third District Court of Appeals held that there is no exception to exhaustion for claims in which an adjuster made a mistake in reimbursement or adjusted the claim based on a current, but incorrect, interpretation of the law. Geico Indem. Co. v. Gables Ins. Recovery, Inc., 159 So. 3d 151, 155 (Fla. 3d DCA 2014). Instead, the exception is limited only to instances in which reimbursement is clearly prohibited under the policy and the statute. Id. As it stands, benefits are properly exhausted the payments have been reimbursed in good faith and on timely bills. Here, there is no allegation and no evidence of bad faith or payments on stale dates of service, and it is undisputed that the Defendant paid out a total of $10,000 in Personal Injury Protection benefits and additional personal injury benefits based on the policy issued to its insured. As a result, all benefits to which she may be entitled have been exhausted. Accordingly, Defendant’s Motion for Final Summary Judgment should be granted. Wherefore, Defendant, requests this court to enter an order granting final summary judgment in favor of GARRISON PROPERTY & CASUALTY INSURANCE COMPANY and against Plaintiff, and for any other and further relief this court deems fair and just. 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Florida e-Portal on December 3, 2021 to: Amy Sullivan, Esquire, Morgan & Morgan, 3705 N. Himes Ave, Tampa, FL 33607, asullivan@forthepeople.com. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 201 East Kennedy Blvd., Suite 1100 Tampa, FL 33602-5864 Tel: (813) 898-1800 Fax: (813) 221-5026 Primary: LJPinkerton@MDWCG.com Secondary: PIPServiceTPA@MDWCG.com By: /s/ Laura J. Pinkerton Laura J. Pinkerton, Esq. Florida Bar No.: 1010825 Garrison Property & Casualty Insurance Company 12/3/2021 11:20 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7