10 Fla. L. Weekly Supp. 947c

Insurance — Personal injury protection — Interest — Error for trial court to deny plaintiff’s motion for partial summary judgment on statutory interest on hospital bill paid one day late or, at minimum, to refuse to submit matter to jury for resolution — There is no exception for minimal claims to statutory requirement that interest be paid on all overdue PIP payments — Any question regarding plaintiff’s entitlement to interest should have been presented to jury, and trial court did not follow correct procedure in questioning claims adjuster about lateness of payment and existence of assignment outside presence of jury — Further, trial court erred in deciding that there was assignment to hospital without sufficient evidence of assignment where court based its finding on claims adjuster’s testimony that bill indicated existence of assignment but claims adjuster did not know if there had been actual assignment — Copy of assignment filed by insurer in appendix to answer brief is not part of record on appeal — Jury instructions — Trial court’s error in giving contradictory and confusing “concurring cause” instruction is not reversible error where plaintiff presented hybrid instruction to court — Further, verdict form set forth proper statement of law

BETTY PENSON, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-4198-CI-88B. UCN522002AP04198XXXXCR. August 18, 2003. David A. Demers, Judge. Appeal from Final Judgment, Pinellas County Court, County Judge Karl B. Grube. Counsel: Earl I. Higgs, for Appellant. Gerard P. Duignan, for Appellee.

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by Betty Penson (Penson), from the Final Judgment, entered April 15, 2002, in favor of State Farm Mutual Automobile Insurance Company (State Farm) following a jury trial. Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

Penson sued State Farm for payment of personal injury protection (PIP) benefits that arose from an automobile accident, on June 17, 1999, in which Penson was a passenger. Penson alleged that as a result of the accident, she had to undergo surgery to repair an injury to her right knee. Penson sought payment from State Farm of a medical bill submitted by Edward White Hospital, where the knee surgery was performed. Penson’s suit also sought statutory interest on a bill for treatment received at Northside Hospital, which was paid by State Farm one day late.

During the litigation of the underlying claim, Penson moved for partial summary judgment on the issue of statutory interest on the Northside Hospital bill. State Farm did not file a response to this motion nor dispute that the bill was paid one day late. At the summary judgment hearing, Penson argued that Florida Statute, § 627.736(4)(c), provides that “all overdue payments shall bear simple interest.” Penson also argued that she had not assigned her benefits to Northside; State Farm did not rebut this argument. The trial court denied Penson’s motion based on the doctrine of de minimis non curat lex, finding that $.35 was “so trifling that the court is not going to grant summary judgment over 35 cents.”

Thereafter, the parties went to trial on the remaining issue of whether State Farm was liable for the Edward White Hospital bill. During the course of the trial, the issue of statutory interest once again arose. The trial court stated that the issue would not be presented to the jury. However, outside the presence of the jury, the trial court received testimony from State Farm’s claims adjuster on whether the Northside bill was paid late and whether there was an assignment of Penson’s benefits to Northside. The trial court implicitly ruled that there had been an assignment of benefits and that it could not make a ruling “with respect to their [Northside’s] entitlement to payment . . . as Northside is not a party.” The jury came back with a verdict in favor of State Farm, upon which Final Judgment was entered.

The first issue raised by Penson is whether the trial court erred when it denied her motion for partial summary judgment on the issue of statutory interest and then refused to allow the matter to be presented to the jury. The Court finds that the trial court committed reversible error on both fronts. Initially, it was error for the trial court to not grant Penson’s motion for partial summary judgment. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). State Farm conceded that it paid the Northside bill one day late and that it owed one day of interest. As mentioned above, the clear and unambiguous language contained in Florida Statute, § 627.736(4)(c), states that “all overdue payments shall bear simple interest.” (emphasis added). There is no exception, such as the doctrine of de minimis non curat lex, recognized by statute or case law under the facts of this case.¹ Indeed, the legislative scheme behind the PIP statute is to provide swift payment to the insured and to deter certain kinds of conduct by insurance companies by imposing statutory fees. See Government Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987) (citing Comeau v. Safeco Ins. Co., 356 So.2d 790 (Fla. 1978) (stating that an insurance company cannot be permitted to stonewall its insured by retaining payments to which it is admittedly not entitled)).

Additionally, if there was a factual issue regarding Penson’s entitlement to statutory interest, it should have been presented to the jury. Instead, the trial court allowed questioning of the claims adjuster, outside the presence of the jury, on whether the Northside bill was paid late and whether there was an assignment of benefits to Northside. This was not the correct procedure. Additionally, the trial court decided there had been an assignment of benefits to Northside without sufficient evidence of an assignment. The only testimony heard on the matter came from the claims adjuster who testified that: “[t]he bill indicates there is an assignment there. I don’t know if that is for a fact.” The claims adjuster did not know if there had been an actual assignment of benefits and she did not have an assignment of benefits in her file.

In Bell v. Allstate Insurance Company, 2003 WL 21246394, 10 Fla. L. Weekly Supp. 298 (Fla. Cir. Ct. March 3, 2003), the court stated “[e]ven when a claim form submitted by the healthcare provider indicates that an assignment has been accepted . . . there must be a formal assignment to divest an insured of standing.” Likewise, in this case, the Northside bill falls far short of a formal assignment of benefits necessary to deprive Penson of standing to sue State Farm. Although State Farm included a purported assignment in its Appendix filed with its Answer Brief, the Court cannot consider this document, as it is not a part of the record on appeal. See Pedroni v. Pedroni, 788 So.2d 1138, 1139 (Fla. 5th DCA 2001) (finding that documents in the unauthorized appendix attached to the appellant’s reply brief were not part of the record on appeal and could not be properly considered by the reviewing court).

State Farm also cites to Schuster v. Blue Cross, 842 So.2d 909 (Fla. 4th DCA 2003), for the proposition that Penson is not entitled to statutory interest when she assigned the benefits to Northside. However, Schuster is readily distinguishable from the present case. In Schuster it was undisputed that the insureds had assigned their right to benefits to the medical provider. As provided above, there was no evidence that Penson had assigned her rights to Northside Hospital. Therefore, it was error for the trial court to deny Penson’s motion for partial summary judgment for one day of statutory interest, or, at a minimum, to submit the matter to the jury for resolution.

The second issue raised by Penson is whether the Final Judgment must be reversed because the trial court erred in submitting two contradictory and confusing instructions to the jury on causation. The Court agrees with State Farm’s position on this issue; that is, although the trial court erred in giving the “concurring cause” instruction, it is not reversible error since Penson presented this hybrid instruction to the trial court. A party cannot complain of an error for which he himself is responsible. See Schaeffer v. Pulido, 492 So.2d 1157, 1157-58 (Fla. 3d DCA 1986) (holding that where the plaintiff submitted the jury instruction of which she complains, the plaintiff invited the error and could not appeal the issue on those grounds). Additionally, both parties agreed to the language used in the verdict form which set forth the proper statement of law.

Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is reversed and this cause is remanded to the trial court with directions to enter final summary judgment in favor of Penson on the issue of statutory interest and for action consistent with this Order and Opinion. It is further

ORDERED AND ADJUDGED that the Penson’s Motion for Attorney’s Fees and Costs is granted and State Farm’s Motion for Attorney’s Fees and Costs is denied. The trial court shall determine the amount of reasonable attorney’s fees to be awarded to Penson.

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¹Although State Farm could not provide this Court with any statutory or case law wherein this doctrine would be applicable, this Court shares the trial court’s apparent frustration with having the time and resources of the judicial system brought into play for $.35. Such a suit might be called a “very tiny claim” in contrast to a small claim or a civil claim. See Loeffler v. Roe, 69 So.2d 331, 338 (Fla. 1953) (stating that the legal maxim ‘de minimis non curat lex,’ simply means that the law does not care for small things). However, this matter is proper for legislative resolution within the framework of the PIP statute.

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