11 Fla. L. Weekly Supp. 854a
Insurance — Personal injury protection — Limitation of actions — Statute of limitations on insurer’s breach of insurance contract by refusing to pay for any further chiropractic treatment began to run when further treatment was rendered and billed, not on date insured received termination of benefits letter — Motion for summary judgment denied
LAKE MARY BLVD. CHIROPRACTIC CLINIC, INC., as assignee for DAWN TAPSCOTT, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-1927-19-R. June 16, 2004. Ralph E. Eriksson, Judge. Counsel: Glenn Klausman, Altamonte Springs, for Plaintiff. Dale T. Gobel, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came on to be heard before this Court on June 2, 2004 upon the Motion for Final Summary Judgment filed herein by the Defendant, State Farm Mutual Automobile Insurance Company. The Court heard argument of counsel for the parties and reviewed the record in the case. The Court makes the following findings of fact in the case:
1. Dawn Tapscott was covered by a policy of insurance that was issued by the Defendant and that provided for personal injury protection benefits.
2. Dawn Tapscott was injured in a motor vehicle accident on October 30, 1997.
3. Dawn Tapscott received treatment for injuries received in the accident from Lake Mary Blvd. Chiropractic Clinic.
4. Pursuant to an Independent Medical Examination, State Farm notified the Plaintiff (via termination letter) on February 26, 1998 that they would not pay for any further chiropractic treatment as it would be unnecessary.
5. In July, 1998 and August, 1998 the insured received treatment from Lake Mary Blvd. Chiropractic Clinic and billings for those two dates of service.
The instant lawsuit is to collect payment for those two billings and was filed on May 5, 2003.
The Defendant (insurance company) argues that the five year statute of limitations began to run on the date that the insured received the termination of benefits letter (February 26, 1998) and therefore, the instant lawsuit to collect for treatment provided and billed in July/August of 1998 is filed after the expiration of the statute of limitations.
The Plaintiff argues that the statute of limitations does not begin to run until the cause of action accrues and that there was no cause of action in this case until medical treatment was provided/billed in July/August of 1998.
A breach of contract action consists of 1) a valid contract; 2) a material breach; and 3) damages. Gumberg v. Janis Services, 847 So. 2d 1048, 1049 (Fla. 5th DCA 2003) .
In the case at bar there is no dispute that there was a valid contract and there is no dispute that State Farm’s termination of benefits letter constituted a material breach. The question is when the third element, i.e. damages, existed. Under Florida Statute § 627.736
“(4) BENEFITS; WHEN DUE — Benefits due from an insurer . . . shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred . . . .”
“(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.”
Therefore, damages materialized in July/August of 1998 when treatment was rendered/billed. (The termination of benefits letter in this case simply served to effectively waive the thirty-day time period that the insurer was allowed, by statute, to pay the bill.)
It is, therefore
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is denied.
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