17 Fla. L. Weekly Supp. 475a
Online Reference: FLWSUPP 1706GARC
Insurance — Personal injury protection — Where insurer determined to pay claim in full in response to demand letter, insurer was required to include $250 statutory penalty in its payment and make payment to attorney who submitted demand letter, not medical provider
BELLAMAR MEDICAL CENTER, INC. a/a/o MATIANA GARCIA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 07-003374-SC, Division M. Civil Division. May 1, 2008. Paul L. Huey, Judge. Counsel: Roberto R. Alayon, Roberto R. Alayon, P.A. Tampa, for Plaintiff. Anthony J. Petrillo, Luks, Santaniello, Perez, Petrillo & Gold, Tampa, for Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS MATTER came on for hearing on April 2, 2008, on Plaintiff’s Motion for Summary Judgment. After reviewing the file, listening to the arguments of the parties and researching applicable law, the Court FINDS, ADJUDGES and DECREES:
1. That the material facts are undisputed.
2. That on or about October 4, 2006, Matiana Garcia was involved in an automobile accident and, as a result of injuries sustained in this accident, she sought out medical services from BELLAMAR MEDICAL CENTER, INC., hereinafter referred to as Plaintiff.
3. That at the time of the initial visit, Matiana Garcia assigned her rights to Plaintiff pursuant to the policy of insurance issued by Defendant. (Plaintiff’s Exhibit “A”.)
4. That between October 6, 2006, and December 14, 2006, Plaintiff submitted a series of properly completed HCFA forms to Defendant so as to receive payment for services rendered on behalf of Matiana Garcia.
5. That Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, hereinafter referred to as United, refused to pay any of the bills submitted by Plaintiff for medical services rendered on behalf of Matiana Garcia.
6. That on or about January 3, 2007, Plaintiff’s counsel submitted a 15-day Pre-Suit Demand Letter which was received by Defendant on January 8, 2007. (Plaintiff’s Exhibit ‘B’.)
7. That on or about January 31, 2007, Plaintiff filed a breach of contract action against United for its failure to pay said medical bills.
8. That the lawsuit was received by the Clerk of Court on February 6, 2007. (Plaintiff’s Exhibit ‘C’.)
9. That on February 9, 2007, Plaintiff’s counsel received a check in the amount of $6.08 for postage reimbursement. (Plaintiff’s Exhibit ‘D’.)
10. That on or about February 5, 2007, Plaintiff’s counsel contacted his client and was made aware of the fact that Defendant had sent Plaintiff directly a check in the amount of $10,000 for services rendered on behalf of Matiana Garcia, along with an additional interest payment in the amount of $112.62. (Plaintiff’s Exhibit ‘E’.) Plaintiff’s attorney of record was not even copied on the payment.
11. That United failed to include with any of its payments the $250 penalty mandated by Florida Statutes, 627.736(11)(d).
12. It is undisputed that United breached its obligations under the PIP policy. Section 627.736(11)(d) gave United an escape hatch. To open the hatch, United was required, among other actions, to (1) make payment to the “person filing the notice of written statement” and (2) pay for the treatment in accordance with the notice “and to pay a penalty of 10 percent, subject to a maximum penalty of $250, when it pays. . . .” It is undisputed that United failed to satisfy those requirements. In response, United argues that its omissions are exculpated by the next sentence in this statute: “To the extent the insurer determines not to pay any amount demanded, the penalty shall not be payable in any subsequent action.” That argument fails for at least two reasons. One, United did determine to pay the amount in full, i.e., it did not determine not to pay. Two, United’s argument would render the statutes’ penalty provision meaningless. Taken to its logical conclusion, United’s theory is contrary to the express intention of the legislature to penalize, albeit not harshly, PIP insurers for delaying payment for any reason.1 United provided the Court no case law supporting its position. The Court finds that United’s position is inapposite to longstanding Florida law requiring statutory interpretation enforcing the will of the legislature rather than thwarting it.
WHEREFORE, there being no material issue of fact and the law being clear, Plaintiff’s motion for summary Judgment is GRANTED. If the parties cannot now settle the matter, counsel for Plaintiff shall provide the court a Final Judgment.
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1It is critical to remember that the facts of this case manifest payment in full of the underlying claim, not a partial payment.
