17 Fla. L. Weekly Supp. 693a
Online Reference: FLWSUPP 1708MORAInsurance — Personal injury protection — Where PIP insurer’s notice that policy had been canceled prior to accident and would not cover any medical expenses related to accident constituted anticipatory breach of policy, insured and medical provider were not required to submit medical bills to insurer before filing suit
JOSEPHINE MORALES, an individual, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 07-9477 55. May 14, 2010. Sharon L. Zeller, Judge. Counsel: Edgar Velazquez, Coral Springs, for Plaintiff. Matt Hellman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION AND MOTION TO RENEW DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on March 17, 2010 on Defendant STATE FARM FIRE AND CASUALTY COMPANY’S Motion for Reconsideration and Motion to Renew Defendant’s Motion for Summary Judgment, and the Court having reviewed the motion and record, heard argument of counsel, reviewed relevant legal authorities, and otherwise been duly advised in the premises, finds as follows:
I.
The instant action involves a breach of contract personal injury protection (PIP) claim. Plaintiff JOSEPHINE MORALES (hereinafter MORALES) was involved in a motor vehicle accident on March 15, 2003 for which medical treatment was rendered by a chiropractor and orthopedist. MORALES claims Defendant STATE FARM FIRE AND CASUALTY COMPANY (hereinafter STATE FARM) breached the PIP contract by failing to provide benefits related to the chiropractic and orthopedic treatment. STATE FARM denied that it was responsible for paying any benefits because it claims the PIP policy was cancelled before the March 15th accident and because bills were not properly submitted, pursuant to Fla. Stat. §627.736(5)(c).
II.
On January 4, 2008, STATE FARM filed a motion for summary judgment averring it is not responsible for the PIP benefits claimed by MORALES because medical bills in the form of Health Insurance Claim Forms (HICFs) were not submitted to STATE FARM in a timely manner, pursuant to Fla. Stat. §627.736(5)(c). MORALES argued that HICFs did not have to be sent to STATE FARM before filing suit because STATE FARM anticipatorily breached the PIP contract once STATE FARM informed MORALES on multiple occasions that her policy was cancelled, was not in force on the date of the accident, and would not cover any medical treatment related to the accident. On June 23, 2009, the Court denied STATE FARM’S motion for summary judgment based upon the authority in Peachtree v. Walden, 759 So.2d 7 (Fla. 5th 2000).
In Peachtree, the defendant PIP carrier informed the plaintiff that no benefits would be paid after a date certain. Given the PIP carrier’s notice that it would deny any additional benefits, the plaintiff in Peachtree did not submit any additional medical bills before filing suit. The PIP carrier moved for summary judgment claiming that any bills actually submitted, even after suit was filed, were timely paid. The county court entered summary judgment in favor of the PIP carrier. On appeal, the circuit court reversed, holding that “Peachtree’s notice that it would no longer pay benefits was a repudiation of the contract giving rise to a cause of action for breach of contract.” Id. at 8. The plaintiff argued that “she was not required to give Peachtree 30 days to pay the bills, because it had notified her that it would not pay any further bills.” Id. The PIP carrier petitioned for a writ of certiorari to the Third District Court of Appeal, which writ was denied. The Third District agreed with the circuit court that summary judgment should not have been entered by the county court, and further held:
The notice Peachtree sent to [the plaintiff], to the extent her treatment was necessary, reasonable, and related to the accident, constituted an anticipatory breach of its agreement to provide those benefits. . . . “It is now the generally prevailing rule in both England and the United States that a definite and unconditional repudiation of the contract by a party thereto, communicated to the other, is a breach of the contract, creating an immediate right of action and other legal effects, even though it takes place long before the time prescribed for the promised performance and before conditions specified in the promise have ever occurred.” . . . Peachtree’s notice gave rise to a cause of action for breach of contract with respect to the claims that accrued by the time of the litigation. . . . We do not think the insured is required to wait 30 days to see if the insurer was only kidding when it sent the notice.
Id. (citations omitted).
Similarly in this case, record evidence indicates that STATE FARM told MORALES two days after her crash that the policy had been cancelled. STATE FARM also sent a letter to MORALES on March 18, 2003, three days after the crash, that her policy had been cancelled before the date of the accident. STATE FARM sent another letter to MORALES on April 30, 2003, stating that the policy was not in force on the date of loss, and denying any benefits for the subject crash. Dr. Michelle Amaral, MORALES’ chiropractor, also furnished an affidavit explaining that her “office was advised that [MORALES’] automobile insurance company, State Farm, denied all coverage.” Dr. Amaral also stated in her affidavit:
Because State Farm denied all coverage, it was futile to send any medical bills to State Farm for PIP payments. Having denied all coverage, it was clear that State Farm would not voluntarily make any PIP payments for the medical services that I rendered to Ms. Morales, regardless of whether or not I sent the medical bills to State Farm, and my office is not in the habit of performing useless acts, i.e., billing insurance companies for services where the insurer says that there is no insurance coverage in existence.
Just as the plaintiff in Peachtree did not have to submit her medical bills to the PIP insurer before filing suit and wait to see if the insurer was only kidding when it sent the notice of cancellation of benefits, MORALES and her medical providers did not have to send the medical bills to STATE FARM before filing suit once STATE FARM informed her on multiple occasions that her policy was cancelled, was not in force on the date of the accident, and would not cover any medical treatment related to the accident.
III.
On January 13, 2010, STATE FARM filed the motion that is the subject of this order. STATE FARM’S Motion for Reconsideration and Motion to Renew Defendant’s Motion for Summary Judgment asserted that based upon recent supplemental case law the Court should reconsider its denial of the summary judgment motion and reverse its prior order. STATE FARM believes that State Farm Mut. Auto. Ins. Co. v. Pressley, No. 1D09-1481, [35 Fla. L. Weekly D150b], 2010 WL 90407 (Fla. 1st DCA Jan. 12, 2010), requires reversal of the Court’s denial of the summary judgment motion.
In Pressley, bills were not submitted to the PIP carrier in a timely fashion, pursuant to Fla. Stat. §627.736(5)(c). However, the insured in Pressley had a PIP policy that was in force on the date of the accident, and which otherwise would have provided benefits to the insured. Id. at *3. The Pressley case is not relevant to the central issues of the instant matter. Pressley is inapposite because in that case the PIP policy was not cancelled, there was no prior indication by the PIP carrier that benefits would be denied, there was absolutely no discussion regarding anticipatory breach or repudiation, and that case did not involve a situation in which the insurer gave notice in advance of a claim that it would not provide benefits. Pressley simply holds that if and when a PIP policy is in force and covers medical treatment, the medical bills must be submitted timely, pursuant to Fla. Stat. §627.736(5)(c). By contrast, where, as in this case, a PIP insurer anticipatorily denies any benefits whatsoever, then Peachtree controls.
IV.
“[I]t is clear that actions for PIP benefits are based on the insurance contract and thus are governed by contract principles.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 892 (Fla. 2003). “It is an accepted principle of law that when parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes part of the contract . . .” Westside EKG Associates v. Foundation Health, 932 So.2d 214, 216 (Fla. 4th DCA 2005). “It is axiomatic that the anticipatory breach of a contract by one party excuses contractual compliance by the other.” Fabel v. Masterson, 951 So.2d 934, 936 (Fla. 4th DCA 2007). “When one party repudiates a contract, the non-breaching party is relieved of all obligations to tender performance under the contract and has an immediate cause of action for breach.” Ordones v. American Interstate Ins. Co., 950 So.2d 427, 428 (Fla. 4th DCA 2006). The Court finds that because there is record evidence showing that STATE FARM anticipatorily breached the PIP contract, HICFs did not have to be submitted to STATE FARM by MORALES or her providers pursuant to Fla. Stat. §627.736(5)(c).
Accordingly, it is ORDERED and ADJUDGED that Defendant STATE FARM FIRE AND CASUALTY COMPANY’S Motion for Reconsideration and Motion to Renew Defendant’s Motion for Summary Judgment is hereby DENIED.
