14 Fla. L. Weekly Supp. 232c
Insurance — Personal injury protection — Demand letter — Lost wages — Demand letter for wage loss claim did not comply with statutory requirements where letter stated number of weeks insured was out of work, multiplied by salary, but did not indicate dates on which insured was out of work after surgery — Appellate court will not entertain argument that section 627.736(11) is unconstitutional for retroactively materially changing insurance contract by requiring presuit demand letter where issue was not raised before trial court
LUIS A. HERNANDEZ, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-417 AP. L.T. Case No. 03-010527 SP 25. January 17, 2007. An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Counsel: Geoffrey B. Marks and Fernando F. Freire for Appellant. Douglas H. Stein and Liam P. Kelley for Appellee.
(Before MURPHY, THOMAS and EIG, JJ.)
(MURPHY, Judge.) Plaintiff/Appellant, Luis A. Hernandez, appeals the trial court’s grant of Final Summary Judgment on behalf of Defendant/Appellee, Progressive Express Insurance Co. The Final Summary Judgment stated that the applicable statute, section 627.736(11), Florida Statutes, required Plaintiff/Appellant to submit documents along with the demand letter to support his lost wage claim. As such, Defendant/Appellee’s Final Summary Judgment was granted, and it concluded that the demand letter was insufficient according to the statute.
The Plaintiff/Appellant was involved in an automobile accident on September 5, 1998. On August 28, 2003, Plaintiff/Appellant filed suit against Appellee, asserting his wage loss claim as his damages. Plaintiff/Appellant’s Initial Complaint was not preceded by a demand letter as required by section 627.736(11), Florida Statutes (2003). The trial court granted Plaintiff’s Motion to Amend Complaint, even after Defendant’s Motion for Final Summary Judgment was submitted and pending review. Prior to Plaintiff/Appellant filing his Amended Complaint, he served a demand letter on Defendant/Appellee. The demand letter conformed with section 627.736(11), Florida Statutes (2003), in most respects, but it only stated the amount of lost wages requested as damages ($177.00 x 12 weeks = $2,124.00 x 60% = $1,274.00). Plaintiff/Appellant’s demand letter listed no time frame concerning the lost wages claim submitted. Upon consideration of Defendant’s Second Motion for Final Summary Judgment, the trial court entered the Final Summary Judgment.
The standard of review of a summary judgment is de novo. See Lawyers Title Ins. Corp. v. Wells, 881 So. 2d 668, 669 (Fla. 5th DCA 2004); Dr. Phillips, Inc. v. L & W Supply Corp., 790 So. 2d 539, 541 (Fla. 5th DCA 2001). “Judicial interpretation of a Florida Statute is purely a legal matter and therefore subject to de novo review.” Direct Gen. Ins. Co. v. Morris, 884 So. 2d 1077, 1078 (Fla. 1st DCA 2004) (citing Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376, 377 (Fla. 5th DCA 1998)); Guardianship of J.D.S. v. Dep’t of Children and Families, 864 So. 2d 534, 537 (Fla. 5th DCA 2004).
The Plaintiff/Appellant claims that the trial court incorrectly required additional documents be attached to the demand letter so that it would comply with section 627.736(11), Florida Statutes (2003). We agree. However, notwithstanding the trial court’s reasoning for granting Appellee’s Motion for Final Summary Judgment, we AFFIRM under the longstanding principle referred to as the “tipsy coachman” doctrine. See, Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999)) (the “tipsy coachman” doctrine allows an appellate court to affirm a trial court that reaches the right result, but for the wrong reason so long as there is any basis which would support the judgment in the record). As such, the trial court granting of summary judgment was correct, although for the wrong reason, because Plaintiff/Appellant failed to comply with the strict and unambiguous requirement of section 627.736(11), Florida Statutes (2006).
Section 627.736(11), Florida Statutes (2003), provides in pertinent part:
(11) Demand letter. —
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph(4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
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 form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
The Plaintiff Appellant attempts to divide section 627.736(11)(b)3., Florida Statutes (2003), into sections, thereby concluding that the need to supply dates of accommodation for a lost wage claim does not apply. He argues that the first sentence that contains the requirement to supply dates in an itemized statement in the demand letter, applies only when there is a claim for medical treatment. Accordingly, he asserts that he met the requirements of the statute by providing what is required for a lost wage claim, which was the number of weeks out of work times the salary. He further claims that he strictly followed the statute’s mandate; and dates are not required for a lost wage claim. This Court disagrees with Plaintiff/Appellant’s contentions.
Florida cases consider the inclusion of the date of treatment, service, or accommodation, a material statutory requirement for a demand letter, notwithstanding whether the service is medical or not:
[t]he 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 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, 655 So. 2d 1292, 1296 (Fla. 5th DCA 1995) (quoting Hooper v. State Rd. 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., 11 Fla. 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).
Progressive Express Ins. Co. v. Polynice, 12 Fla. L. Weekly Supp. 1015b, 1016b (Fla. 9th Cir. Ct. July 18, 2005). In the instant case, it is evident that Plaintiff/Appellant’s demand letter did not comply with the mandates set forth in section 627.736(11) since it failed to indicate the dates in which Plaintiff/Appellant was out of work after the surgery.
Section 627.736(11) is unambiguous and must be strictly construed. Chambers Med. Group, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 556 (Fla. 13th Cir. Ct. Mar. 18, 2005). Summary disposition of a case is appropriate when the plaintiff has not complied with section 627.736(11). See, e.g., Family Chiropractic Health Ctr., Inc. v. First Floridian Auto & Home Ins. Co., 10 Fla. L. Weekly Supp. 358a (Fla. Hillsborough Cty. Ct. Feb. 25, 2003) (summary judgment entered against plaintiff who did not comply with pre-suit demand requirement); Simon v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 347a (Fla. Palm Beach Cty. Ct. Feb. 5, 2004) (same); Mobile Diagnostic Imaging, LLC v. Allstate Indem. Ins. Co., 11 Fla. L. Weekly Supp. 361a (Fla. Broward Cty. Ct. Jan. 20, 2004) (same); Alava v. Omni Ins. Co., 11 Fla. L. Weekly Supp. 446a (Fla. Marion Cty. Ct. Mar. 15, 2004) (dismissing complaint against insurer where plaintiff did not comply with the requirements of § 627.736(11)(a)).
Courts are uniform concerning the need to stringently construe the notice statute, not just for the sake of a medical provider, but the insurer and the insured, to control costs:
[a]s a matter of public policy it is of paramount importance that the Demand Letter requirements of Fla. Stat. 627.736(11) are strictly adhered to. Allowing medical care providers to loosely adhere to the Demand Letter requirements would unquestionably cause the price of automobile insurance to increase because of the additional costs that would result from litigation that could have been avoided by the insurer and the provider . . . . Thus, . . . legislatively prescribed safeguards must be strictly adhered to for the benefit of the insured, medical care provider, and the insurer.
Chiro-Medical Rehab. of Orlando, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 162b (Fla. Broward Cty. Ct. Oct. 15, 2004). Thus, the inclusion of dates of accommodation is mandatory information that must be included in a proper demand letter.
Plaintiff/Appellant also disputes the constitutionality of section 627.736(11), Florida Statutes (2003), because it retroactively materially changed the contract of insurance (the incorporated PIP statute) that the parties signed by requiring a demand letter to be submitted before an action can be commenced against an insurer in a PIP contract. However, the record fails to indicate that the issue was raised below, and therefore, this Court declines to entertain it. See Radio Station WQBA, 731 So. 2d at 644 (“Generally, if a claim is not raised in the trial court, it will not be considered on appeal.”); Thompson v. Napotnik, 923 So. 2d 537, 540 (Fla. 5th DCA 2006) (“The law is well-settled that constitutional issues not raised in the trial court cannot be raised for the first time before a district court of appeal”).
ACCORDINGLY, Defendant/Appellee’s Final Summary Judgment Motion is AFFIRMED, Appellee’s Motion for Attorney’s Fees Pursuant to Proposal for Settlement, awarding Defendant/Appellee an entitlement to appellate attorney’s fees is GRANTED and this matter REMANDED for further proceedings. (THOMAS, Judge, concurs.)
__________________CONCURRING OPINION
(EIG, Concurring Opinion.) I concur with the majority’s decision that the Defendant/Appellee’s Final Summary Judgment Motion must be affirmed. As a condition precedent to filing any action for an overdue claim, the insurer must be provided with written notice of intent to initiate litigation. § 627.736(11), Fla. Stat. (2006). It is undisputed that Plaintiff/Appellant submitted the demand letter after the litigation had commenced.
However, I respectfully disagree with the majority’s conclusion that “Plaintiff/Appellant’s demand letter did not complied [sic] with the mandates set forth in section 627.736(11) since it failed to indicate the dates in which Plaintiff/Appellant was out of work after the surgery.” In my view, the Plaintiff’s notice had sufficient information to serve as a demand. Although not timely, the letter specifically stated the name of the insured; the type of claim that would be litigated (i.e. lost wages); and the numbers of weeks that the insured was out of work times his usual salary amount. As such, Plaintiff’s notice adheres to the essential requirements under section 627.736(11)(b)3., Florida Statutes (2006).
