18 Fla. L. Weekly Supp. 137b
Online Reference: FLWSUPP 1802MELK Insurance — Personal injury protection — Overdue benefits — Statutory amendment which requires insured to afford insurer thirty days to respond to demand for PIP benefits before filing action for overdue benefits constitutes substantive change to statute that cannot be applied retroactively to policy issued before effective date of amendment
STEVEN MELKA, Appellant, v. MERCURY INSURANCE COMPANY OF FLORIDA, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 09-000056AP-88B. UCN 522009AP000056XXXXCV. October 27, 2010. Counsel: James J. Dowling and Barry E. Berger, Law Offices of Berger and Dowling, Palm Harbor, for Appellant. David B. Kampf and Tara A. Zimmerman, Ramey & Kampf, P.A., Tampa, for Appellee.
ORDER
THIS CAUSE is before the Court an appeal from the Order of Final Summary Judgment entered by the County Court on November 4, 2009, nunc pro tunc October 20, 2009. Appellant Steven Melka argues that the County Court erred by granting Appellee Mercury Insurance Company summary judgment based on Appellant’s failure to comply with the statutory presuit requirement. Specifically, the County Court found that the Appellant filed suit prematurely by affording Mercury less than thirty days to respond to his demand for Personal Injury Protection benefits in violation of Florida Statutes section 627.736(10), effective January 1, 2008. Appellant argues that he gave proper notice under section 627.736(11), the statute in effect at the time the insurance policy was issued and which provided for a fifteen-day pre-suit notice period.
In Menendez v. Progressive Express Insurance Company, 35 So. 3d 873 (Fla. 2010) [33 Fla. L. Weekly S222b], the Florida Supreme Court held that the statutory presuit notice provision is substantive rather than procedural and therefore should not be given retroactive application. The Florida Supreme Court quashed the decision of the Third District Court of Appeal, Progressive Express Insurance Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], the authority argued by Mercury before the trial court and in response to this appeal.
In light of the supervening decision in Menendez, the presuit notice requirements of section 627.736(10) do not apply retroactively to the Appellant’s lawsuit. Accordingly, it is
ORDERED AND ADJUDGED that Order of Final Summary Judgment is REVERSED, and the matter is REMANDED to the County Court for further proceedings consistent with this decision.
