17 Fla. L. Weekly Supp. 1249c
Online Reference: FLWSUPP 1712PALEInsurance — Personal injury protection — Interest — Where insurer paid benefits on 30th day after date of receipt of notice of loss, no interest was due — No merit to arguments that interest began to accrue upon receipt of bills and that date of receipt of bills is counted in calculation of thirty-day period
JACKSONVILLE INJURY TREATMENT CENTER, LLC, as assignee of Miguel Palencia, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502009 SC012330 XXXX SB RS. August 30, 2010. Janis Brustares Keyser, Judge. Counsel: Lindsey Porack, Deitsch & Wright, P.A., Boca Raton, for Plaintiff. Scott E. Danner, Kirwan, Spellacy & Danner, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT REGARDING OVERDUE INTEREST
THIS CAUSE having come before the Court on August 17, 2010 pursuant to Plaintiff’s Motion for Summary Judgment and Defendant’s Cross Motion in Opposition to Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the file, considered the argument and Memorandum of Law submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On June 4, 2009, Miguel Palencia, was allegedly involved in an automobile accident. At the time of the accident, Mr. Palencia sought coverage under a policy of insurance issued by Defendant, MGA Insurance Company, Inc. under a policy, which provided personal injury protection (PIP) benefits to Plaintiff in the amount of $10,000.00.
2. That Defendant received bills for treatment and services rendered to Mr. Palencia by the Plaintiff from July 7, 2009 through July 9, 2009 on July 21, 2009; these facts are not disputed by the parties.
3. In response to Plaintiff’s bills for dates of service July 7, 2009 through July 9, 2009 Defendant paid Plaintiff $442.43. That Defendant issued and mailed the payment for the above dates of service on August 20, 2009.
4. That the Plaintiff’s Motion alleged that Defendant was one (1) day overdue on the payment of these medical bills and alleged that the bills were paid on the 31st day.
5. Plaintiff further alleged that the interest began to accrue upon the receipt of written notice of a covered loss or upon the receipt of the medical bills. Consequently, the Plaintiff was alleging that Defendant owed 31 days of interest or $3.01.
6. Defendant asserted that interest did not begin to accrue at all due to the fact that the bills were not yet overdue as they were paid on the 30th day in accordance with Fla. Stat. 627.736 (4)(b).
7. Specifically, Fla. Stat. 627.736(4)(b) states, inter alia:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written noticeof the fact of a covered loss and of the amount of same. (Emphasis added).
8. The Plaintiff asserted that the insurer received the medical bills on July 21, 2009 and paid same on August 20, 2009, and argued that the date of receipt was to be counted in the calculation of the 30 days, thus concluding that the Defendant had paid on the 31st day.
9. Defendant asserted that the according to Florida Rule 1.090 the first day of the computation of time is not included.
RULE 1.090 TIME
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. . . .(Emphasis added).
CONCLUSIONS OF LAW
If the insurer does not pay by the statutory 30-day period, on the 31st day, the insurer is itself in violation of the PIP statute and the insured is free to initiate a lawsuit to have the case determined on the merits. Amador v. United Auto. Ins. Co., 748 So. 2d 307, 308 (Fla. Dist. Ct. App. 3d Dist. 1999) [24 Fla. L. Weekly D2437a]; § 627.736(4)(b), Fla. Stat. (1997); Fortune v. Pacheco, 695 So. 2d at 395 [22 Fla. L. Weekly D1076a]; Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266, 1268 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1984a]; Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974).
In United Auto. Ins. Co. v. Stat Techs., 787 So. 2d 920, 922 (Fla. Dist. Ct. App. 3d Dist. 2001) [26 Fla. L. Weekly D1237b] the court determined that the legislature intended that interest on overdue PIP payments does not commence until the loss accrues, which is 30 days after the insurance company receives notice of a fact of covered loss. See Government Employees Ins. Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987); Ortiz v. Safeco Ins. Co., 144 N.J.Super. 506, 366 A.2d 695 (N.J.Sup.Ct. 1976). To calculate interest on overdue payments from the first day notice is received would contravene established law, contradict other statutory provisions, and circumvent statutory intent.
Based upon the foregoing, to count the first day of receipt of the bills, or July 21, 2009, would violate the legislative intent and Fla. Stat. 627.736(4)(b).
WHEREFORE, it is ORDERED and ADJUDGED as follows:
1. That Defendant’s Cross Motion for Summary Judgment is hereby GRANTED.
2. That the Defendant paid the medical bills on the 30th day in compliance with Fla. Stat. 627.726(4)(b) and Fla. R. Civ. P. 1.090.
