14 Fla. L. Weekly Supp. 1000b
Insurance — Personal injury protection — Coverage — Insured’s action against insurer seeking damages as a result of unpaid PIP benefits that insured sought to be applied towards a workers’ compensation lien incurred after insured was involved in an on-the-job automobile accident — Suit was premature where complaint was filed less than 30 days after service of demand letter — Error to enter summary judgment in favor of insured on ground that lien had been settled where there were factual issues as to whether lien had been settled or when settlement occurred, whether insurer had been put on reasonable notice of insured’s request for compensation, and, if there were a lien settlement to which PIP benefits applied, the entity which should be paid to avoid duplication — Civil procedure — Error to consider counsel’s unsworn statements when considering motion for summary judgment — Insurer’s failure to file affidavit in opposition to summary judgment is of no consequence where insured did not meet burden of showing absence of factual issue
[Editor’s note: See opinion of District Court of Appeal, published at 35 Fla. L. Weekly D2866b.]
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant/Cross-Appellee, vs. FRANK CANNINO, Appellee/Cross-Appellant. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 06-0006AP-88A. UCN522006P000006XXXXCV. Case No. 06-0050AP-88B. UCN522006AP000050XXXXCV. July 17, 2007. Appeal from Pinellas County Court, Small Claims Division. Counsel: Valerie Hendricks, Tampa, for Appellant/Cross-Appellee. Roy L. Glass, St. Petersburg; and Kevin B. Weiss, Maitland, for Appellee/Cross-Appellant.
ORDER AND OPINION
THIS CAUSE came before the Court on two appeals, Appeal No. 06-0006AP-88A and Appeal No. 06-0050AP-88B, which were subsequently consolidated by order of this Court. In the first appeal, the Appellant, Progressive Express Insurance Company (Progressive), seeks review of Final Summary Judgment for Plaintiff, entered December 9, 2005, in favor of the Appellee, Frank Cannino (Cannino). In the second appeal, Cannino is the Appellant and seeks review of the Final Judgment of Attorney’s Fees and Costs, entered June 29, 2006, in which the trial court awarded fees and costs in favor of Cannino in the amount of $9,120.91, plus interest. Upon review of the briefs, the record and being otherwise fully advised, the Court reverses both rulings.
The facts underlying these appeals stem from a Complaint for Declaratory Relief, Compensatory Damages and Demand for Jury Trial filed by Cannino against Progressive seeking damages as a result of unpaid personal injury protection (PIP) benefits that Cannino sought to be applied towards a worker’s compensation lien incurred after Cannino was involved in an on-the-job automobile accident. Progressive filed its Answer, Affirmative Defenses, and Motion to Dismiss Count I of Plaintiff’s Complaint Seeking Declaratory Relief. Thereafter, Cannino filed Plaintiff’s Motion for Summary Judgment asserting that his medical treatment had been paid by his worker’s compensation carrier and that his PIP coverage had been reserved at Cannino’s direction. The Motion for Summary Judgment stated that Cannino had settled his motor vehicle liability claim. Cannino further asserted that the worker’s compensation carrier had agreed to settle its lien of $39,212.00 for the total sum of $12,940.00, and that Cannino was entitled, as a matter of law, to no less than $10,000.00 in PIP benefits, plus costs, interest, and attorney’s fees.1
Attached to the summary judgment Motion were several letters: a letter from the worker’s compensation carrier, dated June 1, 2005, extending an “offer” to settle the worker’s compensation lien for $12,940.00; a demand letter, dated April 28, 2005, from Cannino’s attorney, Roy Glass, Esquire, to Michelle Pattino, Claims Specialist for Progressive, requesting that $10,000.00 be paid to offset the worker’s compensation lien of $36,420.00; a letter, dated June 20, 2005, from Roy Glass, Esquire, to Cindy Filko, Medical Claims Representative for Progressive, stating that Cannino was again providing Progressive with a statement of Cannino’s worker’s compensation payments for injuries and lost wages. The record reflects that Cindy Filko responded, via letter dated June 23, 2005, that Progressive could not reimburse Cannino for his bills until it received a copy of the worker’s compensation lien and a copy of all medical bills.2
On October 31, 2005, Cannino’s Motion for Summary Judgment came before the trial court. Cannino’s counsel argued that summary judgment was appropriate as Progressive failed to respond to Cannino’s demand letter requesting full payment of PIP benefits, $10,000.00, to be applied to the worker’s compensation settlement of $12,940.00. Progressive’s counsel responded that summary judgment was inappropriate as Cannino did not provide Progressive with thirty days to respond to his demand letter and that Cannino did not provide Progressive with evidence that his third-party tort claim had settled. At the conclusion of the hearing, the trial court, the Honorable Karl Grube,3 granted summary judgment in favor of Cannino, making several oral findings, including that: “based upon plaintiff’s counsel’s assertions,” the third party tortfeasor suit had been settled; that Progressive had been put on reasonable notice as to Cannino’s request for compensation; that Progressive had admitted all Cannino’s requests for admissions; that Progressive’s affirmative defense that Cannino failed to satisfy all conditions precedent for bringing his action was too broadly worded, and; that Progressive did not file an affidavit opposing summary judgment.
Before a written order was entered, Cannino filed, on November 8, 2005, Plaintiff’s Motion for Clarification of Order to be Entered on Plaintiff’s Motion for Summary Judgment, attaching three letters sent between the parties following the summary judgment hearing. The Motion requested the trial court to clarify whether, as a matter of law, the fact that the worker’s compensation lien had not been paid precluded payment of PIP benefits by Progressive to Cannino.4 On December 9, 2005, the trial court entered Final Summary Judgment for Plaintiff finding that Cannino had settled the “Worker’s Compensation lien of $39,212.00 for the amount of $12,940.00, Plaintiff demanded payment of the PIP policy limits of $10,000.00 plus interest and penalties, none of which has been tendered or paid by Defendant Progressive.” Thereafter, on June 29, 2006, the trial court entered Final Judgment of Attorneys Fees and Costs, from which Cannino filed his Notice of Appeal.
The primary issue before this Court is whether the trial court erred in entering summary judgment in favor of Cannino. In reviewing this issue, the Court reiterates that summary judgment can be granted only when “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Fla. R. Civ. P. Rule 1.510(c). The Court conducts a de novo review of summary judgment. Summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail. See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). As emphasized by the Second District Court of Appeal in Hervey, “if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Id.
As an initial observation, while argued before the trial court but not raised as an issue on appeal, it appears that Cannino’s suit was premature.5 The record reflects that Cannino’s first demand letter, dated March 16, 2005, was legally insufficient. Cannino’s second demand letter, dated April 28, 2005, was not sent to the person designated by Progressive for the purpose of accepting pre-suit notices pursuant to Florida Statutes, section 627.736(11)(c).6 Cannino’s third demand letter was legally sufficient and was sent to the correct person, on June 3, 2005. However, Cannino filed his complaint less than thirty days later, on June 23, 2005.7 An insurer has thirty days to investigate a PIP claim before suit can be filed. See Fla. Stat. §627.736(4)(b); see also January v. State Farm Mutual Ins. Co., 838 So.2d 604, 607 (Fla. 5th DCA 2003).
Further, as pointed out by Progressive during the summary judgment hearing and as is pertinent to the issues raised on appeal, it appears the demand letter itself was premature as there was no evidence presented to Progressive, in the form of a settlement of the worker’s compensation lien, that there was an overdue claim. See Fla. Stat. §627.736(11)(a). The alleged settlement letter, dated June 1, 2005, and attached to Cannino’s complaint as part of Exhibit A, shows there was only an offer to accept the sum of $12,940.00 to settle the worker’s compensation lien. However, without the need to address whether Progressive had a duty to tender the PIP policy limits directly to Cannino under these facts, summary judgment must be reversed as the trial court went outside the scope of Rule 1.510(c) in granting summary judgment. See City of Brooksville v. Hernando County, 424 So.2d 846, 849 (Fla. 5th DCA 1982) (reversing summary judgment when trial court went outside the parameters of Rule 1.510(c) by considering prior trial proceedings that were not transcribed).
First, the trial court erred in considering “assertions,” even if undisputed, that the worker’s compensation lien had been settled. Unsworn statements made by counsel do not establish facts, in the absence of a stipulation, and are not evidence. See Puya v. Superior Pools, Spas & Waterfalls, Inc., 902 So.2d 973, 975 (Fla. 4th DCA 2005); see also State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988); Leon Shafer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982). Second, the trial court erred in considering letters attached to Plaintiff’s Motion for Summary Judgment and additional letters attached to Plaintiff’s Motion for Clarification of Order to be Entered on Plaintiff’s Motion for Summary Judgment, filed after the summary judgment hearing. As held in Nichols v. Preiser, 849 So.2d 478, 481 (Fla. 2d DCA 2003), “[s]imply attaching documents that are not sworn or certified to a motion for summary judgment does not satisfy the procedural requirements of Florida Rule of Civil Procedure 1.510(e).” Had these letters been attached to the complaint or to an affidavit they could have been lawfully considered as part of the pleadings. See Buzzi v. Quality Service Station, Inc., 921 So.2d 14, 16 (Fla. 3d DCA 2006); see also Walden v. Chase Manhattan Bank, USA, N.A., 872 So.2d 432, 433 (Fla. 4th DCA 2004).
Even if these letters had been properly attached to the complaint or an affidavit, the record reflects that there is at least a doubt as to whether the worker’s compensation claim had been settled (or at what point the worker’s compensation claim settled), whether Progressive had been put on reasonable notice as to Cannino’s request for compensation, and, if there was a settlement to which PIP benefits were due, to whom or what entity PIP benefits should be paid to avoid a duplication of benefits.8 See Hervey, supra. The admitted requests for admission do not support summary judgment as they merely state that Progressive received the above-cited letters by Cannino. Lastly, it is of no consequence that Progressive did not file an opposing affidavit since Cannino never met his burden of showing that there were no genuine issues of material fact. See id.
Therefore, it is,
ORDERED AND ADJUDGED that the Final Summary Judgment for Plaintiff and the Final Judgment of Attorney Fees and Costs are reversed and this cause is remanded for action consistent with this Order and Opinion.
It is further,
ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees and Motion to Tax Appellate Attorney’s Fees and Costs, both filed by Cannino, are denied. (R. TIMOTHY PETERS, GEORGE M. JIROTKA and CYNTHIA J. NEWTON, JJ.)
__________________
1On May 3, 2007, this Court entered its Order for Parties to Clarify Record on Appeal, as the record showed that Progressive had tendered the policy limits of $10,000.00 to Cannino, on or about June 7, 2005. In response, the parties clarified that the $10,000.00 tendered by Progressive was for underinsured motorist (UM) coverage and that the benefits sought by Cannino by filing his complaint were premised on his PIP coverage.
2This letter was attached to Plaintiff’s Notice of Intent to Claim Section 57.105, Fla. Stat., and Fla. R. Civ. P. 1.380(a)(4) Attorney’s Fees, filed October 20, 2005.
3Judge Grube has since retired and the Honorable Kathleen T. Hessinger is the successor judge who entered the subsequent Final Judgment of Attorney’s Fees and Costs.
4The Court notes that in one of the letters, dated November 2, 2005, which cannot be considered in determining whether summary judgment was appropriate, counsel for the worker’s compensation carrier states that “Mr. Glass [Cannino’s counsel] has not nor will he be sending any monies to our office in satisfaction of that lien which is now otherwise settled and waived by my client.” It is questionable as to whether Progressive owes any PIP benefits at all if the worker’s compensation carrier has “waived” its lien to which PIP benefits were to be applied.
5This Court, sitting in its appellate capacity, generally cannot rule on issues not presented on appeal. See Lightsee v. First National Bank of Melbourne, 132 So.2d 776, 778 (Fla. 2d DCA 1961)
6This section states, in part: “Such notice [of intent to initiate litigation] must be sent to the person and address specified by the insurer for purposes of receiving notices under this subsection.”
7Count IV of the complaint specifically alleges that Progressive failed to pay PIP benefits within thirty days of receiving written notice as required by Florida Statutes, section 627.736(4).
8See e.g. Fortune Insurance Company v. McGhee, 571 So.2d 546, 548 (Fla. 2d DCA 1990) (holding that insured was not entitled to full PIP benefits without offset for workers’ compensation benefits she received); South Carolina Insurance Company v. Arnold, 467 So.2d 324, 326 (Fla. 2d DCA 1985) (explaining that the purpose of section 627.736(4) in requiring workers’ compensation payments to be offset against PIP benefits is to preclude the duplication of recovery).
