15 Fla. L. Weekly Supp. 1030a
Insurance — Personal injury protection — Declaratory judgment — Unsworn, unsigned fax letter from insurer’s adjuster and cancellation language included on installment notice did not satisfy requirement that insurer provide statement under oath of corporate officer, claim manager, or superintendent setting forth any policy or coverage defense as requested in demand letter — Standing — Assignment is facially sufficient to create standing for medical provider to maintain declaratory judgment action — Suit for declaratory relief is appropriate where provider was left in doubt as to its rights
ROBERTS ORTHOPAEDIC CLINIC, P.A., as assignee of Suheily Lopez, Plaintiff, vs. SENTRY INSURANCE, A MUTUAL COMPANY F/K/A VIKING INSURANCE COMPANY OF WISCONSIN, AND DOING BUSINESS AS PEAKE PROPERTY AND CASUALTY INSURANCE, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 07-SC-003489. July 18, 2008. Donald L. Marblestone, Judge. Counsel: Donna C. Wyatt, Rutledge Bradford Attorneys at Law, Orlando. Aaron E. Leviten, Winter Park.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT II
THIS MATTER having come before this Court on Plaintiff’s Motion for Summary Judgment on Count II and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
Suheily Lopez was involved in an automobile accident on January 2, 2007, and was treated by the Plaintiff, Roberts Orthopaedic Clinic, on April 23, 2007. Plaintiff accepted an assignment of benefits from Lopez and on April 24, 2007, submitted a statement of charges to the Defendant, Sentry Insurance, a Mutual Company f/k/a Viking Insurance Company of Wisconsin d/b/a Peake Property and Casualty Insurance Company.
The affidavit filed by the Plaintiff established that no response to the billing was received from Defendant. A Demand and Notice of Intent to Initiate Litigation was sent to the Defendant on June 20, 2007, and received by the Defendant on June 25, 2007. The Demand requested a copy of the policy, declarations page and a sworn statement of a corporate officer, claim manager or superintendent setting forth a statement of any policy or coverage defense pursuant to 627.4137, Florida Statutes.
On July 2, 2007, the Defendant responded to the Demand by providing an unsigned, unsworn fax letter by its adjuster that the policy had cancelled for nonpayment of premium and cancellation documents had been ordered and would be forwarded upon receipt.
On July 11, 2007, the adjuster faxed a cover sheet indicating the cancellation documents were attached. Attached was an “Installment Notice” which contained language that if the premium was not paid by a certain date, the policy was cancelled along with proof of mailing of the document to its insured, Liden Rosario. Nothing on the documents provided advised the Plaintiff that the premium had, in fact, not been paid and no sworn statement was provided.
An Amended Complaint was filed on August 23, 2007. Count I was a claim for breach of contract; Count II requested declaratory relief. On February 25, 2008, the Defendant filed an affidavit of Doug Owens establishing that no premium was received from its insured, Liden Rosario, prior to the automobile accident and the policy had cancelled for nonpayment on December 6, 2007. This Court previously granted the Defendant’s Motion for Summary Judgment as to Count I and denied it as to Count II. Plaintiff now seeks summary judgment as to Count II.
IT IS HEREBY ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Summary Judgment as to Count II is GRANTED.
2. The Court finds that the Defendant failed to comply with 627.4137, Florida Statutes. The Court finds that 627.4137, Florida Statutes requires the Defendant to provide a statement under oath of a corporate officer, claim manager or superintendent setting forth a statement of any policy or coverage defense. The unsworn, unsigned fax letter from the Defendant’s adjuster and cancellation language included on the Installment Notice did not provide information pursuant to 627.4137, Florida Statutes. The Court finds the holding of New Hampshire Insurance Company v. Rural Metro Ambulance a/a/o William Zaniboni, 13 Fla. L. Weekly Supp. 573a controls in this matter and that the provisions of 627.4137, Florida Statutes applies to PIP actions. This finding is consistent with the previous rulings by this court in Florida Emergency Physicians a/a/o Douglas Watkins v. Progressive Express Insurance Company, 14 Fla. L. Weekly Supp. 1167a (September 19, 2007) and Florida Emergency Physicians a/a/o Freddie Walker, 14 Fla. L. Weekly Supp 1167b (September 12, 2007).
3. Moreover, this Court finds that the assignment of benefits relied upon by Plaintiff to be facially sufficient to create standing to maintain Plaintiff’s Declaratory Judgment action and, further, that the Plaintiff was left in doubt as to its rights and a suit for declaratory relief is proper under these circumstances. Higgins v. State Farm Fire & Casualty Company, 894 So.2d 5 (Fla. 2004).
