15 Fla. L. Weekly Supp. 935b
Insurance — Personal injury protection — Tender — Validity — No merit to argument that tender of full amount of claim accompanied by letter stating that payment does not preclude or limit insurer’s ability to assert that claim was unreasonable, unrelated or not medically necessary was conditional tender where letter merely reiterates insurer’s rights under PIP statute to challenge reasonableness, relatedness or necessity of claim even after paying claim — Upon tender of amount of claim into court registry, insurer will be entitled to final judgment
ATLANTIC ACU-MEDICAL CENTER CORP. (a/a/o Jean Hilaire), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-6023 COCE 53. July 2, 2008. Robert W. Lee, Judge. Counsel: Kenneth J. Dorchak, North Miami, for Plaintiff. Don Mathews, Fort Myers, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 18, 2008 for hearing of the Defendant’s Motion for Final Summary Judgment, 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, the Court finds as follows:
Background. In this PIP case, the Defendant is defending based on its claim that it timely tendered the entire amount requested in the presuit demand. The undisputed facts indicate that Progressive timely tendered the entire amount requested ($693.43) on February 26, 2007. Along with the check, Progressive included a cover letter which included the following paragraph:
This is a compromise of a disputed claim as to both questions of liability and as to the nature and extent of the treatment, services, and charges, and that neither this letter, Explanation of Benefits form, or the payment pursuant hereto shall be construed as any admission of liability. This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable, or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
The Plaintiff rejected the tender, claiming that the tender was conditional, and returned the payment to the provider. The Plaintiff then filed suit on April 12, 2007.
Conclusions of Law. Under Florida law, a valid “tender” generally requires a party’s unconditional offer of the amount due. 39 Fla. Jur. 2d Payment & Tender §30 (2006). However, if the tender includes “conditions” that the tendering party has a right to invoke, it is nevertheless still a valid tender. See id.; McGehee v. Mata, 330 So.2d 248, 249 (Fla. 3d DCA 1976); Plank v. Arban, 241 So.2d 198, 200 (Fla. 4th DCA 1970).
Florida law further provides that a PIP insurer has the right to challenge the reasonableness, relatedness, and necessity of a PIP claim, even after the insurer has paid the claim. Fla. Stat. §627.736(4)(b). The language used in Progressive’s letter parrots for the most part a direct quote of the statutory language. Clearly, the language in Progressive’s letter reiterates nothing more than Progressive’s rights under the statute. As a result, its tender was not “conditional.” Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is GRANTED. Upon tender of the sum of $693.43 into the Court Registry, the Defendant shall be entitled to a final judgment in its favor.
