17 Fla. L. Weekly Supp. 982b
Online Reference: FLWSUPP 1710ORTE
Insurance — Personal injury protection — Coverage — Medical expenses — Demand letter sent by assignee to insurer prior to insured’s revocation of assignment apprising insurer that litigation would ensue for non-payment of PIP benefits for treatment given to insured was sufficient to notify insurer of impending lawsuit for nonpayment of PIP benefits and to provide insurer with opportunity to settle case or pay benefits without incurring attorneys’ fees and costs — Error to grant summary judgment pfor insurer on insured’s complaint, filed after assignment was revoked and provider voluntarily dismissed its complaint, for failure to provide presuit notice required by statute
MAIKEL ORTEGA, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-078 AP. L.C. Case No. 08-9705 CC 25. July 2, 2010. On Appeal from the County Court for Miami-Dade County, Jacqueline Schwartz, Judge. Counsel: Mark J. Feldman, Mark J. Feldman P.A., for Appellant. Maury L. Udell, Beighley, Myrick & Udell, P.A., for Appellee.
[Certiorari denied at 36 Fla. L. Weekly D71j.]
(Before MURPHY, TRAWICK, and TUNIS, JJ.)
(PER CURIAM.) This is an appeal by Mr. Ortega to reverse the trial court’s order granting summary judgment in favor of Progressive American Insurance Company (hereinafter referred to as “Progressive”). The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).
Mailkel Ortega was involved in an automobile accident on August 31, 2007. Mr. Ortega received treatment, for injuries related to the automobile accident, from S & B Medical Center, Incorporated (hereinafter referred to as “S & B Medical”). On May 6, 2008, S & B Medical, as the assignee of Mr. Ortega, sent a demand letter to Progressive American Insurance Company (hereinafter referred to as “Progressive”). S & B Medical filed suit for the non-payment of personal injury protection (hereinafter referred to as “PIP”) benefits on June 11, 2008. In its response, Progressive included the affirmative defense of lack of standing by S & B Medical due to Mr. Ortega executing a revocation of assignment on May 2, 2008. On July 14, 2008 S & B Medical voluntarily dismissed its lawsuit. On July 16, 2008, Mr. Ortega filed suit against Progressive for breach of contract for the non-payment of personal injury protection (hereinafter referred to as “PIP”) benefits. On August 28, 2008 Mr. Ortega sent a demand letter to Progressive. On December 8, 2008, the trial court entered an Order Granting Defendant’s Motion for Summary Judgment based on Mr. Ortega’s failure to provide the required pre-suit notice in compliance with the Florida Statute section 627.736(11).
The statute in effect at the time of the execution of the insurance contract governs any issues arising from the contract. Hassen v. State Farm Mutual Ins. Co., 674 So. 2d 106, 108 (Fla. 1996); Lumbermens Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3d DCA 1983). The effective date of the insurance policy contract between Progressive and Mr. Ortega is unknown as it is not part of the record. The accident occurred on August 31, 2007; therefore, the 2007 statutes will be referenced in this opinion.
PIP benefits are designed to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000).In 2001, the legislature enacted the pre-suit notice requirement under Florida Statute section 627.736(11)1 providing:
As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
§ 627.736(11)(a), Fla. Stat. (2007).
The legislature enacted section 627.736 so that “[l]itigation costs could be reduced due to the provisions in the bill which broaden the application of the presuit demand letter to cover all PIP disputes and which gives insurers more time to respond to demand letters. Parties could settle many PIP disputes rather than file lawsuits, thus reducing the amount of court costs and attorney’s fees.” United Auto. Ins. Co. v. Sarria, 15 Fla. L. Weekly Supp. 1150a (Fla. 11th Cir. Ct. October 23, 2008) quoting Staff Analysis, Senate Bill 32-A (2003A). The purpose of the demand letter is to notify the insurer of an impending lawsuit for the non-payment of PIP benefits and to allow the insurer the opportunity to pay the PIP benefits without incurring attorneys’ fees and costs.
Mr. Ortega argues that Progressive received notice of the impending lawsuit pursuant to section 627.736(11). Progressive argues that it did not receive the statutorily mandated pre-suit notice due to the May 6, 2008 demand letter coming from S & B Medical and not Mr. Ortega. The Court takes into consideration not just the caption of the demand letter, but also the actual notice Progressive received through the receipt of the May 6, 2008 demand letter apprising it that litigation would ensue for the non-payment of PIP benefits for treatment given to Mr. Ortega. The purpose of the May 6, 2008 pre-suit letter was to notify the Progressive of an impeding lawsuit for the non-payment of PIP benefits and to provide Progressive with the opportunity to settle the case or pay the PIP benefits without incurring attorneys’ fees and costs. This Court finds that May 6, 2008 letter comports with the statutory requirements of section 627.736(11) by noticing Progressive of an impeding lawsuit due to the non-payment of Mr. Ortega’s PIP benefits.
This case is hereby reversed and remanded to the trial court for proceedings consistent with this opinion. The Court grants Mr. Ortega’s motion for appellate attorneys’ fees.
REVERSED.
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1Florida Statutes section 627.736(11) (2007) provides the following:
(11) Demand letter. —
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if so requested by the claimant in the notice, when the insurer pays the claim. Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation of the name and address of the person to whom notices pursuant to this subsection shall be sent which the office shall make available on its Internet website. The name and address on file with the office pursuant to s. 624.422 shall be deemed the authorized representative to accept notice pursuant to this subsection in the event no other designation has been made.
(d) If, within 15 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer. If the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, no action may be brought against the insurer if, within 15 days after its receipt of the notice, the insurer mails to the person filing the notice a written statement of the insurer’s agreement to pay for such treatment in accordance with the notice and to pay a penalty of 10 percent, subject to a maximum penalty of $250, when it pays for such future treatment in accordance with the requirements of this section. To the extent the insurer determines not to pay any amount demanded, the penalty shall not be payable in any subsequent action. For purposes of this subsection, payment or the insurer’s agreement shall be treated as being made on the date a draft or other valid instrument that is equivalent to payment, or the insurer’s written statement of agreement, is placed in the United States mail in a properly addressed, postpaid envelope, or if not so posted, on the date of delivery. The insurer shall not be obligated to pay any attorney’s fees if the insurer pays the claim or mails its agreement to pay for future treatment within the time prescribed by this subsection.
(e) The applicable statute of limitation for an action under this section shall be tolled for a period of 15 business days by the mailing of the notice required by this subsection.
(f) Any insurer making a general business practice of not paying valid claims until receipt of the notice required by this subsection is engaging in an unfair trade practice under the insurance code.
