12 Fla. L. Weekly Supp. 1015b

Insurance — Personal injury protection — Demand letter — Insured complied with all material requirements of demand letter by specifying that unpaid claim at issue was mileage, the exact mileage due, and the date range in which transportation expense was incurred — Finding that letter was sufficiently specific is supported by fact that insurer made payment for exact amount claimed, with interest, but did not include statutory penalty and postage

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. MICHELET POLYNICE, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-04-43. L. C. Case No. SCO-02-6647. July 18, 2005. Counsel: Heather C. Goodis, Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., for Appellant. Bruce H. Kauffman, Orlando, for Appellee.

(Before WATTLES, THORPE, and GRINCEWICZ, JJ.)

FINAL ORDER AFFIRMING THE LOWER COURT’S OPINION

(PER CURIAM.) Appellant Progressive Express Insurance Company (“Progressive”) seeks review of a Final Judgment entered by the lower court on July 27, 2004, in favor of Appellee Michelet Polynice (“Polynice”). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.

Factual and Procedural Background

On January 1, 2002, Polynice was involved in a motor vehicle accident in which he sustained personal injuries. At the time of the accident, Polynice was insured under a personal injury protection (“PIP”) policy issued by Progressive. Polynice sought treatment for injuries sustained related to the automobile accident. As a result, Polynice incurred transportation costs related to medical treatment from January 2, 2002, through April 1, 2002.

On April 8, 2002, Polynice forwarded to Progressive a correspondence along with the “Request for Mileage Reimbursement” forms which listed the dates of travel, the name of the medical provider, and the total number of miles per trip with an accumulated total of 198 miles. Progressive did not provide payment of the requested mileage expense.

On May 29, 2002, Polynice submitted a demand letter pursuant to section 627.736(11), Florida Statutes, (2001) for payment of the overdue mileage claim. The demand letter also requested reimbursement for postage expense of $3.94. On June 7, 2002, in response to Polynice’s demand letter, Progressive issued a draft in the amount of $46.57 for the claimed mileage expense. The check also included interest of $.63. However, Progressive did not provide payment for postage as requested in Polynice’s demand letter or include a ten percent penalty.

On June 14, 2002, Polynice filed suit against Progressive for violation of section 627.736, Florida Statutes. Both parties moved for summary judgment. A hearing was held on the matter in the lower court on May 13, 2004. On June 17, 2004, the lower court granted Polynice a Final Summary Judgment and denied Progressive’s Motion for Summary Judgment. On July 27, 2004, the lower court entered a final judgment in favor of Polynice in the amount of $3.38 and reserved on attorney’s fees and costs. This appeal ensued.

Standard of Review

The standard of review of a summary judgment is de novo. See Lawyers Title Ins. Corp. v. Wells, 881 So. 2d 668 (Fla. 5th DCA 2004); Dr. Phillips, Inc. v. L&W Supply Corp., 790 So. 2d 539 (Fla. 5th DCA 2001). “Judicial interpretation of a Florida Statute is purely a legal matter and therefore subject to de novo review.” Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376, 377 (Fla. 5th DCA 1998); Guardianship of J.D.S. v. DCF, 864 So. 2d 534 (Fla. 5th DCA 2004); Direct General Ins. Co. v. Morris, 884 So. 2d 1077 (Fla. 1st DCA 2004).

Discussion

The sole issue on appeal is whether Polynice’s demand letter complied with the statutory requirements of section 627.736(11), Florida Statutes, such that Progressive was required to pay a ten percent penalty and postage. Specifically, Progressive contends that Polynice’s demand letter failed to satisfy the requirements contained in subsection (11)(b) which required Polynice to provide “an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.” § 627.736(11), Fla. Stat. (2001).

On the contrary, Polynice claims that the demand letter was specific in that it placed Progressive on notice of the benefits claimed as being due, i.e., reimbursement for dates of travel from January 1, 2002, through April 1, 2002, for 198 miles. Moreover, Polynice asserts that the demand letter provided the appropriate itemization of the benefits claimed as outstanding since it resulted in the correct payment of $45.00 in principle benefits and $.63 in interest by Progressive.

Both parties agree that the 2001 version of section 627.736 would be controlling in this appeal. Section 627.736(11), Florida Statutes (2001), states in pertinent part:

11) DEMAND LETTER. —

(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; . . .

(b) The notice required shall state that it is a “demand letter under section 627.736(11) and shall state with specificity:

1. The name of the insured upon which such benefits are being sought.

2. The claim number or policy number upon which such claim was originally submitted to the insurer.

3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed Health Care Finance Administration [“HCFA”] 1500 form, UB 92, or successor forms approved by the Secretary of the United States Department of Health and Human Services may be used as the itemized statement.

(c) Each notice required by this section must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if so requested by the provider in the notice, when the insurer pays the overdue claim. . . .

(d) If, within 7 business days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action for nonpayment or late payment may be brought against the insurer. To the extent the insurer determines not to pay the overdue amount, the penalty shall not be payable in any action for nonpayment or late payment. . . .

§ 627.736(11), Fla. Stat. (2001). (emphasis supplied).

The requirements of section 627.736(11), Florida Statutes, are very specific and are designed, in part, to provide the insurer an opportunity to know from the demand letter the exact amount claimed, the specific service provided, and the specific date that the service and amount claimed as overdue. The demand letter requirement also creates a right to a ten percent penalty, capped at $250.00, where payment is made within seven business days after receipt of a demand letter. Although Progressive paid the mileage pursuant to the demand letter, it neglected to include the ten percent penalty and postage accruing due to late payment of the overdue mileage claim.

The first basic principle of the law of statutory construction is that “the plain meaning of the statute will not be disturbed in the absence of ambiguity or conflict.” White v. Florida Birth Related Neurological, 655So. 2d 1292, 1296 (Fla. 5th DCA 1995), quoting Hooper v. State Road Dept., 105 So. 2d 515, 516 (Fla. 2d DCA 1958); State v. Warren, 796 So. 2d 489) (Fla. 2001). The second fundamental principle of the law of statutory construction which is crucial here is that “legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute.” State v. Webb, 398 So. 2d 820, 824 (Fla. 1981) (emphasis added). “Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided.” Id. at 824.

When looking at the legislative intent, the court must give due weight and effect to the title of the statutory section. Webb, 398 So. 2d at 824. “The title is more than an index to what the section is about or has reference to it; it is a direct statement by the legislature of its intent.” Id. at 824-25. (citation omitted). The purpose of the demand letter as set forth under section 627.736(11), Florida Statutes, is to put the insurance company on notice of an intent to initiate litigation on a PIP claim submitted as overdue so the insurance company can pay and avoid being sued. See Progressive Express Ins. Co. v. Travis Broussard, 12 Fla. L. Weekly Supp. 277b (Fla. 6th Cir. Ct. 2004) (finding that Broussard’s failure to provide Progressive with a demand letter deprived Progressive of the opportunity to pay the overdue claim and avoid litigation); Glenice Coates v. Progressive Express Ins. Co., 11Fla. L. Weekly Supp. 645b (Fla. Duval Cty. Ct. 2004) (stating that the legislative intent in enacting section 627.736(11), Florida Statutes, was to place the insurance company on notice of what debts or bills remain unpaid); see also Sharon Stretton v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 369b (Fla. Orange Cty. Ct. 2004) (finding that the legislature requires that a demand letter be filed by the claimant prior to filing suit against the insurance company).

In the instant case, it is evident that Polynice’s demand letter¹ complied with the mandates set forth in section 627.736(11), Florida Statutes, since it placed Progressive on notice of the precise claim that was owed and unpaid. The demand letter included with specificity: 1) the unpaid claim at issue, i.e., mileage; 2) the exact mileage due, 198 miles; and 3) the date range in which Polynice incurred the transportation expense, from January 2, 2002, through April 1, 2002. In addition, Progressive was provided notice of this claim in April 2002, when it received the mileage forms from Polynice seeking reimbursement of the 38 trips from January 1, 2002, through April 1, 2002, to and from All Nations Wellness Center, LLC for treatment in connection with the motor vehicle accident. Polynice’s demand letter referenced the exact range of dates and the same total number of miles as found in the mileage forms submitted to Progressive seven weeks prior.

Most importantly, Progressive made payment which was indicative that the demand letter was sufficient in that Progressive made payment not only for the exact $.29 per mile, but also included $.63 in interest. The draft issued by Progressive was clearly annotated “8, 80 percent PIP MILEAGE REIMB, DOS 1/2 – 4/1/02,198 MILES @ $.29.” (emphasis added). Hence, Progressive cannot now claim that the demand letter was not specific enough when the annotation on the check issued by Progressive suggests otherwise.

To support its position, Progressive cites to Chiro-Medical Rehab. of Orlando, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 162b (Fla. Broward Cty. Ct. 2004) and Universal Health Care Ctr., Inc. v. Progressive Express Ins. Co., 11Fla. L. Weekly Supp. 932b (Fla. Broward Cty. Ct. 2004) for the proposition that failure to provide an accurate account of the total amount claimed as being due deprived the insurer of the opportunity to pay the amount and avoid litigation. It is unclear in Chiro-Medical, 12 Fla. L. Weekly Supp. at 162b, as to why a demand letter was needed when the insurance company had reduced or denied the PIP claim.² Unlike Chiro-Medical, Progressive did not reduce or deny Polynice’s claim for reimbursement of the mileage expense; instead, Progressive tendered payment for the total mileage claimed as being due together with the applicable interest but did not include postage and a ten percent penalty as mandated under section 627.736(11), Florida Statutes.

In Universal, 11Fla. L Weekly Supp. at 932b, the trial court held that simply attaching the HCFA forms to the demand letter without stating in the letter the “exact amount due” was inadequate, and therefore, failed to comply with section 627.736(11)(d), Florida Statutes (2003). However, in the instant case, Polynice’s demand letter clearly states that the exact amount claimed was 198 miles for transportation expense.

Progressive also cites to Mandarin Chiropractic Ctr., P.A. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 564b (Fla. Duval Cty. Ct. 2005) in its notice of filing of supplemental authority. However, in Mandarin, the claimant did not give the insurer proper notification of what PIP benefits were due. Here, the demand letter clearly identifies that the claim was for reimbursement of mileage from January 1, 2002 through April 1, 2002, for 198 miles. Therefore, Progressive’s reliance on Mandarin is misplaced.

In the present case, Progressive was afforded the opportunity to pay the precise amount that was due together with the ten percent penalty and postage. Progressive cannot now claim as a safe harbor the language of subsection (11)(b) of the demand letter requirements when the demand letter was sufficient enough for Progressive to make payment prior to Polynice filing the instant lawsuit. To hold otherwise would defeat the intent of the statute and lead to an absurd and unreasonable result.

Accordingly, we find that the trial court correctly found that Polynice complied with all the material requirements of a demand letter made pursuant to section 627.736(11), Florida Statutes.

Appellate Attorney’s Fees

Polynice has timely filed his motion seeking an award of appellate attorney’s fees pursuant to sections 627.736 and 627.428, Florida Statutes. Pursuant to Florida Rule of Appellate Procedure 9.400, Polynice shall be granted an award of his appellate attorney’s fees and that the assessment of those fees shall be remanded to the lower tribunal. Additionally, Polynice is entitled to have costs taxed in his favor by filing a proper motion with the lower tribunal within thirty days after the issuance of the mandate in this case.

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s Final Judgment for Plaintiff’s Postage and Interest entered on July 27, 2004, is AFFIRMED.

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¹The Demand Letter dated May 29, 2002, states that it is a notice of intent to initiate litigation and that the benefits at issue are “[m]ileage reimbursement from 01/02/02 – 04/01/02 for 198 miles.”

²Section 627.736(11) carves out an exception to the presuit demand letter requirement when the overdue PIP claim has been denied or reduced by the insurer.

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