GEICO INDEMNITY COMPANY A/A/O RITA M. LAUZAN

v.

GABLES INSURANCE RECOVERY INC

lNC., ala/0 RITA M. LAUZAN, A ~ Appellee, I ‘ /“» ‘- A "ii - . _ r r . . . I »i z I ’ ' A - Opinion Filed: .l)~I->\ An Appeal from the County Court in and for Miami-Dade County, Florida, Gonzalez-Paulson, J. James K. Clark, Esq., and Rafael T. De La Grana, Esq., ofClark, Robb, Mason Coulombe & Bushman, for Appellant. G. Bart Billbrough, Esq. ofBillbrough & Marks, P.A., for Appellee. Before SAMPEDRO-IGLESIA, POOLER and SANTOVENIA, JJ. (SAMPBDRO-IGLESIA, J. ) i We are asked by Geico to decide two issues in this appeal. First, whether a trial court can require an rnsurer to pay PIP benefits when all benefits under the policy have been exhausted. And, second, whether the trial c0urt’s reliance on Geico v. case was wrongly decided and the issue is subject to reconsideration by the Florida Supreme Virtual Imaging was proper as that _ l --en .-_ l‘*J _4,. 1!

C73

Y...- ‘ .=s- L4-3 C.‘ ('1 .1 :1 -\ L__1 5. s;_._ 5¢ v. _ i’ '3.‘-I u=-;- ,_ ll "*- -A f‘-l,~.. ___ .._J ..s,. 15’-. I’ I fm (_)?‘. - [*2] Court. We answer the first question in the affirmative, under the circumstances ofthis case. And, we answer the second in the affirmative because the trial court must following binding district court decisions. , In this case, Geico paid medical bills in accordance with 80 % of200 % ofMedicare Part B, despite the fact that its policy obligated it to pay 80% of “reasonable” medical expenses, and it is undisputed the Geico did not elect within its policy the permissive reimbursement limitations that the legislature added to the 2008 PIP Statute, i.e., §627.'736(5)(a)2.f. It is clear from the record that the medical bills at issue were submitted timely and at a point in time when ample benefits were available for Geico to pay the subject medical bills in accordance with its promise to its insured. ‘ In Kingsway Amigo Ins. Co. v. -Ocean Health, Inc. (a/a/0 Belizaire Gomez), 63 So. 3d 63 (Fla. 4th DCA 2011), the Fourth District held that an insurer must elect in its policy the permissive reimbursement limitations set forth in §627.736(5)(a)2.f., Fla. Stats. (2008) before it can avail itself of those limitations. Thereafter, the Third District, relying upon Kingsway followed suit in GEICO Indem. C0. v. Virtual Imaging Svcs., Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) (“Virtual I”), GEICO Gen. Ins. C0. v. Virtual Imaging Svcs., Inc. (a/a/0 Maria Tirado), 90 So. 3d 321 (Fla. 3d DCA 2012) (“Virtual II”). ' ' - It is undisputed that Geico’s policy promised to pay 80% of its insured’s “reasonable” medical bills, without any election ofthe alternative method set forth in §627.736(5)(a)2.f. Geico argues that, despite the fact that it may have been wrong in paying in accordance with the permissive §627.736(5)(a)2.f. reimbursement limitations, without having elected to do [*3] in its policy, its subsequent exhaustion of the policy limits shields it from having to now pay in excess ofthe policy limits. We are not persuaded by Geico’s argument. Geico’s payment was wrongful, because instead of paying in accordance with the clear and unambiguous language of its policy (its contractual promise to its insured to pay 80% of “reasonable” medical expenses), Geico chose to “roll the dice” on the permissive provision in §627.736(5)(a)2.f. The fact that Geico may have believed that its payment was made in accordance with the 2008 PIP Statute is of no import. The fact remains that Geico promised its insured that it would pay 80% of “reasonable” medical expenses and it broke that promise on the mistaken belief that it could avail itself of the permissive “safe harbor” reimbursement limitations in §627.736(5)(a)2.f. - The law is clear that insurance contracts are construed in accordance with the plain language of the policy. See Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). And, insurance policies should be construed in a manner most favorable to the insured where there is any ambiguity in the policy. See U.S. Fire Ins. Co. v. ./'.S. U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007); Flores v. AII.s'fate' Ins. Co., I819 So. 2d 740, 744 (Fla. 2002). An insurer may not promise one thing and deliver another. ' We find this case most analogous to Coral Imaging Svcs. v. Geico Indem. Ins. Co., 955 ~So2d '1 1, (Fla. 3d DCA 2006). There, the Third District held that Geico was required topay in excess of its $10,000 limit of liability because it had paid bills to a medical provider who had submitted those bills untimely. The court fotmd that those payments were gratuitous and, thus, the fact that~Geico exhausted benefits (which included those payments) did not shield it from having to pay above its limits ofliability. ~ [*4] Here, Geico wrongly paid the Plaintiffs medical bills in accordance with the §62’7.736(5)(a)2.f. reimbursement limitations despite the fact that it had promised to pay its insured’s medical bills at 80% of a “reasonable” amount. Geico took the risk that the permissive §627.'736(5)(a)2.f. safe harbor was available to it ~ ~ and it was not. Therefore, Geico is in the fairest position to suffer the consequences ofits mistaken decision. Simply put, an insurer’s exhaustion of PIP benefits, in and of itself does not shield the insurer from liability for benefits that exceed the policy limits. The Court notes that a number of instances warrant the imposition of liability on an insurer where policy benefits are wrongly exhausted and this is one such instance. See Pembroke Pines MRS, Inc. (a/a/0 Gabriel Garcia) v. Garrison Prop. & Cas. Ins. Co., Case No. 09~ 10942 COB 55 (Broward Cty. Ct., March 22, 20l1)(denying insurer’s motion for stunmary judgment on exhaustion defense where insurer denied bill based on Box 31 defense and Fourth District ultimately rejected insurer’s position on Box 31 issue); GEICO v. Emergency Physicians ofCentral Fla., Case No. 06-27-AP (Fla. 18th Jud. Cir., April 22, 2008)(affirming summary judgment in favor of insured where benefits were exhausted during GEICO’s continued defense of allegedly defective Demand Letter which was held to be substantially compliant); Progressive Exp. Ins. Co. v. South Fla. Inst. ofMedicine, Inc. (a/a/0 Halil Hawkeye), 14 Fla. L. Wkly. Supp. 520a (Fla. llth Jud. Cir., April 11, 2007)(affirming denial of summary judgment to Progressive on exhaustion defense where, at time of final judgment, Progressive stipulated to RRN and had no reasonable basis to deny bills while exhausting benefits); DCI MRI, Inc. (a/a/0 Endong Zhao) v. State Farm Mat. Auto. Ins. Co., Case No. 2009 SC 002755 SB (Palm Beach Cty. Ct., November 5, 2010)(rejecting exhaustion defense and granting stunmaryjudgment in favor ofinsured where State Farm paid in [*5] accordance with permissive reimbursement limitation in §62'l.'736(5)(a)2.f. and exhausted PIP benefits during suit); Virtual Imaging Services, Inc. (a/a/0 Aurora Mitev) v. USAA Cas. Ins. Co., Case No. 07- 12468-SP-23 (1)(Miami-Dade Cty. Ct., March 12, 2012)(rejecting exhaustion defense where USAA did not pay medical bills in order received and exhausted benefits to detriment of provided who earlier submitted bills); KH. Imaging, Inc. v. Allstate Prop. & Cas. Ins. Co., Case NO. ll~011193 COSO 60 (Broward Cty. Ct., November 7, 2012)(granting summary judgment to plaintiff and rejecting exhaustion defense where Allstate paid bills out of order and depleted PIP benefits to detriment ofprovider who timely submitted earlier bills). We find these rulings to be persuasive and affirm the trial court’s ruling with respect to Geico’s purported “exhaustion” defense. -As for the second issue, the law - # as it stands - - is the law that binds this Court and is the law in effect at time ofdisposition ofthis appeal. Therefore, Geico’s argument that this Court should ignore Kingsway Amigo Ins. Co. v. Ocean Health, Inc. (a/a/0 Belizaire Gomez), 63" So. 3d 63 (Fla. 4th DCA 2011) and its progeny, including in this district GEICO Indem. Co. v. Virtual Imaging Svcs., Inc., '79 So. 3d 55 (Fla. 3d DCA 2011) (“Virtual I”), GEICO Gen. Ins. Co. v. Virtual Imaging Svcs., Inc. (a/a/0 Maria Tirado), 90 So. 3d 321 (Fla. 3d DCA 2012) (“Virtual II”) is not well taken. We are bound by district court decisions. Geico argues that this Court should not follow binding precedent because, according to Geico, those cases were wrongly decided. This we cannot - — and will not - - do. The law is well settled that the law in effect at the time an appeal is decided is the governing law. See Tahiti Beach Homeowner Assn., Inc. v. Pfejfizr, 52 So. 3d 808 (Fla. 3d DCA 2011); Nash v. General Motors Corp., 734 So. 2d 437' (Fla. 3d DCA 1999). Nor are we required to stay this appeal or [*6] defer our ruling until some indefinite time in the future when the Florida Supreme Court may or may not agree with Geico’s position on the issue decided in Kingsway, ct al. Thus, we affirm the trial court’s ruling based upon Geico v. Virtual Imaging. The trial court was correct in relying on binding precedent and any argument to the contrary is disingenuous at best. We will not countenance an insurer’s voluntary breach ofthe plain language of its policy and then allow the insurer to benefit from its own breach. It is a well settled principle oflaw that a party cannot claim a benefit that arises as a result ofits very own breach. Accordingly, the case is affirmed on both issues. The final judgment is AFFIRMED in all respects. The Appellee’s Motion for Appellate Attorney’s Fees is GRANTED‘ and remanded for the trial court to fix an amount. (PO0LER,J. concurs.) ‘ - t ' (SANTOVENIA, J. specially concurring) I r - While the Appellant’s exhaustion of benefits argument might otherwise have been dispositive of this appeal, Appellee argues that the record below reflects that GEICO, after raising the exhaustion of benefits argument below, actually argued to the trial court that the exhaustion of benefits issue was not properly before the court when the trial court ruled on Appellee, Gables Insurance Recovery, Inc.’s Motion for Reconsideration. Accordingly, Appellant cannot nowargue error on that point before this appellate court. See generally Allis v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010); Sunset Harbour Condo.iAss’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005); Santiago v. Abramovitz, 96 S0. 3d I091, I093 (Fla. 4th DCA 2012); USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th DCA 2009); Keech v. Yousef, 815 So. 2d [*7] 718, 719 (Fla. 5th DCA 2002); Kozich v. Hartford Ins. Co., 609 S0. 2d I47, 148 (Fla. 4th DCA 1992); and United Servs. Auto. Ass ’n v. Porras, 214 S0. 2d 749, 750 (Fla. 3d DCA 1968). I would affirm on the basis of the case law which Appellant does not contest applied below (rather, Appellant now argues that the applicable cases were incorrectly decided). See GEICO General Insurance C0. v. Virtual Imaging Services, Ina, 90 S0. 3d 321 (Fla. 3d DCA 20l2), GEICO lndemnilfy Co. v. Virtual Imaging Services, Ina, 79 S0. 3d 55 (Fla. 3d DCA 2011) and Kingsway Amigo Insurance C0. v. Ocean Health, Ina, 63 So. 3d 63 (Fla. 4th DCA 2011).

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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