11 Fla. L. Weekly Supp. 290a
Insurance — Personal injury protection — Coverage — Conditions precedent — Notice of loss — No error in entry of summary judgment in favor of insured where it was not disputed that benefits were owed or that notice of amount due was provided to insurer, but rather, whether letter from insured’s counsel to insurer was legally sufficient notice — Letter sent prior to suit stating sums for treatment rendered by medical provider which were outstanding met statutory notice requirement and created affirmative duty on part of insurer to verify and satisfy outstanding medical bills within 30 days — Attorney’s fees and costs awarded to insured
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, v. KELSEY MCLEAN, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA 102-13. November 17, 2003. Appeal from the County Court, for Orange County, C. Jeffrey Arnold, Judge. Counsel: J. Emory Wood, St. Petersburg, for Appellant. Michael J. Appleton, Orlando, for Appellee.
(Before COHEN, SMITH, M., and GRINCEWICZ, JJ.)
FINAL ORDER AFFIRMING SUMMARY JUDGMENT
(PER CURIAM.) Appellant, State Farm Mutual Automobile Insurance Company (State Farm), appeals the February 15, 2002, entry of summary judgment in favor of Appellee, Kelsey McLean, (McLean). State Farm argues that the lower court abused its discretion in granting McLean’s motion for a new trial and erred in granting McLean’s motion for summary judgment in that a jury question was presented as to whether State Farm was sufficiently presented with receipt of reasonable proof of such loss in the amount of expenses as required by section 627.736(4), Florida Statutes. Further, State Farm argues that the lower court failed to set forth a sufficient basis for its ruling and failed to establish that there was any prejudice to McLean by the jury so as to require a new trial. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.
Procedural and Factual Background
On April 11, 1997, McLean was injured in an automobile accident. State Farm failed to pay Chiropractic One $725.00 in charges for treatment rendered to McLean prior to September 21, 1997. In December of 1998, McLean filed for no-fault benefits against State Farm for its failure to pay certain claims (bills for services rendered May 16, 1997, through May 22, 1997; August 22, 1997, through August 29, 1997; and September 3, 1997, through September 12, 1997) within thirty days as required by section 627.736(4)(b), Florida Statutes. In October of 1999, State Farm paid Chiropractic One for the services rendered to McLean between May 16, 1997, through May 22, 1997.
In January 2000, a trial was held to determine whether State Farm was liable for outstanding bills owed to Chiropractic One. During the course of the litigation, State Farm filed a motion for summary judgment, which asserted, among other things, that State Farm had timely paid all bills received from Chiropractic One for services provided to McLean. The court denied State Farm’s summary judgment motion.
At trial, McLean introduced a letter, dated February 12, 1998, from her counsel to State Farm indicating that there was an outstanding balance. The office manager for Chiropractic One testified that one of the bills at issue had never been billed prior to the filing of the lawsuit and when she noticed that fact, she sent the bill out to State Farm.
At the close of McLean’s case, counsel for State Farm, over objection, moved the entire claims file into evidence and did not call a witness. The issue was presented to the jury for its determination as to whether the greater weight of the evidence showed that State Farm had breached its contract with McLean by failing to pay bills that had been received on or before September 21, 1997.
After a verdict for State Farm, McLean filed a motion for judgment notwithstanding the verdict and/or in the alternative a motion for a new trial based on the fact that the trial judge allowed the entire claims file into evidence in violation of a Motion in Limine, which had been granted prior to trial, and that State Farm’s payment for treatment from May 16 through May 22, 1997, constituted a confession of judgment. State Farm argued that it never received notice of such bills and, therefore, have not paid. State Farm contends that the issue is whether bills were sent to it by the medical care provider.
An order was entered on March 30, 2000, granting McLean’s motion for new trial without setting forth the basis for the ruling. On May 2, 2000, State Farm filed its notice of appeal. On June 9, 2000, pursuant to Florida Rule of Appellate Procedure Rule 9.110(b), this Court dismissed State Farm’s notice of appeal as untimely.
On November 1, 2000, a second trial was held. However, after McLean testified, and prior to counsel for McLean calling its second witness, the substitute judge declared a mistrial without motion from either party, declaring that he was not comfortable with the facts of the case and the appropriate law to apply.
McLean argued the payment by State Farm on October 28, 1999, to Chiropractic One for services rendered to McLean between May 16, 1997, and May 22, 1997, was equivalent to the rendition of a judgment or decree and operates as a confession of a judgment, and as such, entitled McLean to summary judgment and fees.
On February 15, 2002, summary judgment was granted and State Farm was ordered to pay $140.00 for services rendered between August 22, 1997, and August 29, 1997, and $225.00 for services rendered between September 3, 1997, and September 12, 1997, for a grand total of $365.00, plus interest. The summary judgment ruling was based upon the letter from McLean’s counsel to State Farm, previously introduced at trial. The court ruled that the furnishing of that letter was sufficient notice to require State Farm to investigate the claim to determine if there were outstanding bills.
Standard of Review
Where the trial court directs judgment as a matter of law, the appellate court applies the de novo standard of review. See, e.g., Menendez v. The Palms West Condominium Ass’n. Inc., 736 So. 2d 58 (Fla. 1st DCA 1999). The test is whether there are factual questions whose resolution would permit a reasonable jury to decide in a different way than that directed by the court. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Appellate review is actually a two-step process: 1) whether a genuine issue of material fact exists; and 2) whether the trial court applied the correct rule of law. Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000).
Discussion
State Farm argues that the trial court abused its discretion in granting McLean’s motion for a new trial, failed to set forth a sufficient basis for its ruling, and failed to establish that there was any prejudice to McLean by the jury so as to require a new trial. Due to State Farm’s untimely filing of its notice to appeal, this Court has already denied review of the March 30, 2000, Order granting a new trial for lack of jurisdiction to hear this matter pursuant to Florida Rule of Appellate Procedure Rule 9.110(b).
State Farm also argues that the trial court erred in granting McLean’s motion for summary judgment in that a jury question was presented as to whether State Farm was sufficiently presented with receipt of reasonable proof of such loss in the amount of expenses as required by section 627.736(4), Florida Statutes. Summary judgment should be granted where salient facts are not really in issue and the controversy has resolved into one purely of law to be decided on undisputed basic facts. Yost v. Miami Transit Co., 66 So. 2d 214 (Fla. 1953). It is undisputed that McLean’s attorney sent State Farm a demand letter on February 12, 1998. Specifically, the trial court correctly held that the delivery of this letter by McLean’s attorney to State Farm many months prior to the filing of the action met the statutory notice requirements and created an affirmative duty on the part of State Farm to verify and satisfy the outstanding medical bills within thirty days thereafter.
The relevant statute provides in pertinent part:
Personal injury protection 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. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.
§ 627.736(4)(b) Fla. Stat. (2002).
The phrase “written notice” is not defined in the statute. A review of the case law reflects that all that is required to trigger the commencement of the thirty-day period is a writing sufficient to place an insurer on notice that the insured is claiming an entitlement to payment or reimbursement of expenses under his or her personal injury protection (PIP) coverage.
The Florida Supreme Court in United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) stated that section 627.736(4), Florida Statutes, explained that an insured must submit reasonable proof of such loss and amount of expenses.
The legislative intent evinced in the penalty provisions is clear: The provisions were intended to promote the prompt resolution of PIP claims by imposing several reasonable penalties on insurers who pay late.
In sum, the criteria governing payment of benefits and penalties are as follows: (1) an insured may seek the payment of benefits for a covered loss by submitting “reasonable proof” of such loss to the insurer; (2) if the benefits are not paid within thirty days and the insurer does not have reasonable proof that it is not responsible for the payment, the payment is “overdue”; (3) all “overdue” payments shall bear simple interest at a rate of ten percent per year; and (4) whenever an insured files an action for payment of PIP benefits and prevails, the insured is entitled to attorneys’ fees.
Rodriguez, 808 So. 2d at 86.
In the present case, it is not disputed that benefits are owed. The dispute centers around whether State Farm received notice of the amount due. The statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application for benefits. There is no provision in the statute to toll this time limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no-pay” plan — a result we are sure was not intended by the legislature. State Farm Mut. Auto. Ins. Co. v. Jones, 789 So.2d 504, 507 (Fla 1st DCA 2001) (emphasis in original) (quoting Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502, 502 (Fla. 1st DCA 1974)).
The case of Palmer v. Fortune Insurance Co., 776 So. 2d 1019 (Fla. 5th DCA 2001) demonstrates that the insurer has a non-delegable duty to do what it deems necessary to authenticate and pay a claim within the thirty-day statutory period. The burden is on the insurer to authenticate a claim within thirty days under the PIP prompt payment statute. § 627.736(4)(c), Fla. Stat. (2002). In Palmer, the claim information supplied to the insurer contained a number of errors and the insurer experienced some difficulty in securing responses to requests for reports and other information. Despite these problems, the court held that the statutory deadline is not subject to being tolled for any reason. Palmer, 776 So. 2d at 1022. The insurer’s obligation, the court concluded, was to either pay the reasonable value of the submitted claims within the thirty-day period or deny coverage. Id. at 1022.
In Norwegian Cruise Line, Ltd. v. Clark, 841 So. 2d 547 (Fla. 2d DCA 2003) the court determined that the sufficiency of the notice of conditions the passenger accepts was a question of law. Likewise, it is undisputed that State Farm received the letter from McLean’s attorney stating what sums for treatment rendered by Chiropractic One were outstanding. The dispute that was resolved by summary judgment was not about whether notice was provided, the dispute centered around the legal sufficiency of that notice. The sufficiency of that notice was a question of law.
Additionally, it is likewise undisputed that State Farm rendered payment of $220.00 in October 1999, for medical services obtained by McLean from May 16, 1997, to May 22, 1997. This is one year and eight months after McLean’s attorney sent the demand letter. Ultimately, the trial court determined that State Farm received adequate notice of the insured’s claim for PIP, prior to the filing of the lawsuit, and thereafter failed to comply with its statutory duty to authenticate and pay the claim within thirty days pursuant to section 627.736(4), Florida Statutes.
Accordingly, it is hereby ORDERED and ADJUDGED that the trial court’s entry of summary judgment is AFFIRMED.
It is also FURTHER ORDERED AND ADJUDGED that Appellee Kelsey McLean’s Motion for Attorneys’ Fees and Costs is GRANTED, the assessment of which is REMANDED to the lower court.
It is also FURTHER ORDERED AND ADJUDGED that Appellee Kelsey McLean shall have costs taxed in her favor, if she files a proper motion pursuant to Florida Rules of Appellate Procedure 9.400(a) with the lower tribunal within thirty days of the issuance of the mandate in this matter.
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