12 Fla. L. Weekly Supp. 153b
Insurance — Personal injury protection — Limitation of actions — Statute of limitations did not begin to run on date insurer provided notice that it would no longer pay PIP benefits or on date of first treatment after insurer’s general denial of benefits, but on each new date of treatment after general denial — Motion for summary judgment is denied for services received within five years of filing of complaint
WITTMER CLINIC OF CHIROPRACTIC, P.A., by Assignment of Benefit from DEONARINE RAMBISSOON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 01-CC-19110. November 12, 2004. C. Jeffery Arnold, Judge. Counsel: Donald A. Myers, Jr., Bailey & Myers, P.A., Maitland. John L. Morrow, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Orlando.
ORDER DENYING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Defendant’s Amended Motion for Summary Judgment, heard on the 14th day of April, 2004. The Court, having reviewed the file, heard argument of counsel, and being otherwise duly apprised of the premises, makes the following findings of fact and conclusions of law:
1. Deonarine Rambissoon was involved in two separate automobile accidents on August 17, 1995. Based on the injuries sustained in both accidents, Rambissoon sought chiropractic care. Defendant, Rambissoon’s PIP insurer, paid the chiropractic bills provided by Rambissoon between August 1995 and December 1995.
2. In December of 1995, Rambissoon submitted to an IME. The IME report found that continued treatment was not reasonable or necessary. Based on the IME report, Defendant sent Rambissoon a letter on January 8, 1996, stating that it would be terminating benefits for claims incurred after January 12, 1996, regarding further treatment for the injuries sustained in the 1995 accidents.
3. After receiving the letter of termination, Rambissoon regularly received treatment from Plaintiff Wittmer Clinic between January 1997 and June 1997. Plaintiff, acting under an assignment of benefits from Rambissoon, submitted claims for visits during that time period to Defendant. In February 1997, Defendant sent letters to Plaintiff denying PIP benefits for the claims submitted during January 1997 through February 1997. Defendant’s rejection letters referred to Defendant’s January 8, 1996, termination of benefits letter.
4. On December 28, 2001, Plaintiff filed a PIP suit for breach of contract on the unpaid medical bills for the treatments that occurred between January 1997 and June 1997.
5. Defendant argues that Plaintiff’s case is barred by the statute of limitations. The heart of Defendant’s argument is that the statute of limitations began to run on the date of the first treatment after Plaintiff received the general denial of benefits, which occurred in January 1996. As the statute of limitations on a PIP claim is five years, Defendant argues that the statute of limitations in this case expired in January 2001.
6. For a PIP claim, the statute of limitations begins to run when the contract is breached. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996). In Lee, a PIP claim arising from an automobile accident that occurred in December 1988, was denied in February 1989. Id. at 818-19. On February 14, 1994, more than five years after the automobile accident, the plaintiffs filed suit. Id. at 819. The court determined that the statute of limitations on a PIP claim begins to run when a breach of the insurance contract occurs, and the breach occurs when the benefits become overdue after the statutory 30-day time period ends without payment of benefits. Id. at 820-21. It was only on the “denial of the actual PIP claim that the limitations period began running.” Id.
7. Roth v. State Farm Mutual Automobile Insurance Co., 581 So. 2d 981, 982 (Fla. 2d DCA 1991), specifically addressed when to start running the statute of limitations when there are several claims for PIP benefits. Like in Lee, under the Roth court held that the statute of limitations did not begin until the insured received written notice that the claim was denied. Id. at 983. The court decided that the statute of limitations began to run on each individual claim when that individual claim was denied. Id.
8. Rader v. Allstate Insurance Co., 789 So. 2d 1045, 1046 (Fla. 4th DCA 2001), addressed a factual scenario where the insured received a general denial of benefits letter but did not receive medical treatment following the denial. The court pointed out that the insurer’s alleged anticipatory breach did not relieve the insured of the requirement to incur damages to establish a cause of action. Id. at 1047. By not incurring medical bills, the insured failed to have any damages. Id. Thus, under Rader, receipt of medical services is necessary to establish a claim for PIP benefits.
9. Reading Lee, Roth, and Rader together, the Court finds that when Defendant notified Rambissoon of its intent to deny all subsequent claims, each new claim incurred after the general denial became a new cause of action with its own statute of limitations. See Roth, 581 So. 2d at 983 (stating that the statute of limitations for breach of contract on a PIP claim ran for each claim from the point when the specific claim was denied); Rader, 789 So. 2d at 1047 (quoting the circuit court which stated that an alleged anticipatory breach did not relieve Plaintiff of necessity to incur damages to provide a cause of action); see also Berger v. Jackson, 23 So. 2d 265, 269 (Fla. 1945) (explaining there can be no cause of action until a suit may be instituted). Plaintiff incurred multiple expenses when services were rendered for Rambissoon’s ongoing treatments at Plaintiff’s offices in 1997. The statute of limitations could not begin to run on Rambissoon’s claims before Plaintiff rendered the services to Rambissoon, as Defendant argues, because Rambissoon would not yet have a complete cause of action against Defendant. Plaintiff’s claims in this case stem from treatments Rambissoon received within five years of when the suit was filed in December 2001. The earliest claim at issue in this suit is from January 1997, which falls within the five years, and therefore is not barred by the statute of limitations.
10. The Court notes that it is not alone in this determination. In Gaeta v. State Farm Mutual Automobile Insurance Co., 8Fla. L. Weekly Supp. 737a (Fla. Sarasota Cty. Ct. Aug. 13, 2001), under a similar factual scenario, that court reached the same conclusion. Each time the insured received treatment after a general denial of benefits, a new statute of limitations began to run. Id.
11. Defendant relies on Peachtree Casualty Insurance Co. v. Walden, 759 So. 2d 7, 8(Fla. 5th DCA 2000), to argue that the breach of contract occurred and the statute of limitations began to run beginning on the date of the first treatment following Defendant’s general denial of benefits.1 Under Peachtree, if the insurer sends the insured notice of an absolute denial for future claims relating to a specific injury, there is an anticipatory breach of contract. Id. at 8. Peachtree stands for the proposition that if there is an anticipatory breach, the insured may bring suit within the 30-day period prescribed by the PIP statute because the breach takes place when the notice of termination was received.2 Id. Peachtree thus deals with how early an insured may bring suit against the insurance company, not how late the insured may bring suit. See Rader, 789 So. 2d at 1047 (noting Peachtree‘slimited holding).
12. Taking into account the law regarding PIP claims and the statute of limitations, the Court finds that in this case there is a new breach each time a new claim comes into existence after Defendant has denied payment on all future claims. If a claim has been peremptorily denied, the statute of limitations begins to run when the insured receives the services after the general denial. As the insured in this case received the services within five years of the filing of the complaint, the statute of limitations does not bar this action. Therefore, the Court finds that Defendant fails to demonstrate that it is clearly entitled to judgment as a matter of law that the statute of limitations precludes Plaintiff’s claims.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Defendant’s Amended Motion for Summary Judgment is DENIED.
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1The Court notes that Defendant has not cited any case that actually uses this date as when the statute of limitations begins to run.
2It is noted that the provider must still submit claims to the insurer within 35 days of treatment under Section 627.736(5)(c), Florida Statutes, in order for the claim to remain viable under the contract.
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