12 Fla. L. Weekly Supp. 488b
Insurance — Personal injury protection — Delay in payment of benefits — Penalty — Where insurer did not pay bill within 30 days of receipt of demand letter and then paid bill with interest prior to suit, insurer is responsible for paying postage costs and statutory penalty on amount tendered
VANGUARD IMAGING, LLC, (a/s/o Marx Saintelus), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-3071 COSO 62. January 3, 2005. Robert W. Lee, Judge. Counsel: Robert A. Trilling, Trilling & Associates, P.A., Davie. Anthony Tolgyesi, Hollywood.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT FOR PENALTIES AND POSTAGE
THIS CAUSE came before the Court on December 21, 2004 for hearing of the Plaintiff’s Motion for Partial Summary Judgment for Penalties and Postage, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
Background. On April 29, 2004, the Plaintiff filed its Complaint seeking unpaid PIP benefits. The Complaint sounded in three counts: Count I (Breach of Contract); Count II (Breach of Contract — Failure to Provide Payout Sheet); and Count III (Declaratory Relief). As pertains to the issue in this Motion, the Plaintiff claims that under Count I, although the Defendant did pay the medical bill prior to suit, it neglected to include penalties and postage accruing due to late payment of the bill. Specifically, the Plaintiff claims that the insurer’s failure to pay the bill within 30 days of the statutory demand letter has now triggered the obligation to pay penalties and postage. It is undisputed that the demand letter was sent; that the insurer failed to pay within 30 days; that the insurer ultimately paid the bill with interest prior to suit; and that the insurer did not include penalties and postage in its tender of payment.
Conclusions of Law. The operative statutes provide as follows, in pertinent part:
Florida Statute §627.736(11)(c): “Such postal costs shall be reimbursed by the insurer if so requested by the claimant in the notice [demand letter], when the insurer pays.”
Florida Statute §627.736(11)(d): “If, within 15 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 may be brought against the insurer [. . .]. To the extent the insurer determines not to pay any amount demanded, the penalty shall not be payable in any subsequent action.”
In the instant case, the insurer did not include postage and penalty in its tender of payment. Moreover, the insurer did not “determine not to pay any amount demanded.” To the contrary, the insurer paid the bill, albeit late and beyond the demand letter timing deadline. Therefore, the insurer cannot claim as a safe harbor the language of the latter part of subsection (11)(d). Accordingly it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED. The Defendant is responsible to pay the postal costs and statutory penalty on the amount tendered by the insurer to the Plaintiff presuit.
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