11 Fla. L. Weekly Supp. 566a
Insurance — Personal injury protection — Supplemental medical insurance — Requirement to pay 10% penalty when claim for which demand was made is paid by insurer does not apply to payment of claim for optional supplemental medical insurance benefits — Provider is not required to send demand letter before filing suit for unpaid or overdue benefits under optional policy
W.P. BOORAS, M.D., P.A., as assignee of Brett Hale, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-03-SC-11400-XXXX. Division D. April 13, 2004. Russell L. Healey, Judge. Counsel: Scott Craig, Jacksonville. Jerona C. Maiyo, Orlando.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on the Defendant’s Motion to Dismiss and the Court having heard argument of counsel and the Court being otherwise fully advised in the premises, the Court finds as follows:
a. The issue raised by the Motion to Dismiss is a matter of first impression involving Florida Statute 627.736 in general, and specifically, 627.736(11).
b. The Defendant asserts that the Plaintiff is attempting to bring an action based on the Defendant’s failure to comply with the aforementioned statute. Florida Statute 627.736(11) requires a demand letter be sent to a PIP insurer prior to filing suit for any overdue benefits. The statute goes on to require that if the claim for which a demand was made is paid by the insurer, it must be paid with interest and a penalty of 10% of the overdue amount.
c. In the instant case, the Defendant paid the amount demanded together with the interest and the 10% penalty, but did not pay the 10% penalty on the amount due and owing under a supplemental medical payment insurance policy. The medical payment insurance policy is an optional policy which was purchased by Brett Hale.
d. Interestingly, the 2002 version of Florida Statute 627.736 makes mention of medical payment insurance. Florida Statute 627.736(4)(f). However the 2003 version of the statute removed the aforementioned section and it was conceded by the parties that the 2003 version of the statute is the applicable statute in this case.
e. The parties concede that there is no information in the legislative minutes that would inform the Court as to the reasoning behind the removal of this sub-section.
f. The issue then to be resolved by this Court is whether or not the Defendant is required to pay the 10% penalty on an optional insurance policy, which is not mentioned in the applicable statute and which has been specifically removed by the legislature.
g. The Court finds that Florida Statute 627.736 does not apply to medical payment insurance and, therefore, the Defendant is not required to pay the 10% penalty. A logical extension of this would be that the Plaintiff is therefore not required to send a demand letter prior to filing suit for any overdue or unpaid benefits under medical payment insurance (optional policy).
Based upon the foregoing, it is therefore
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is hereby GRANTED.
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