18 Fla. L. Weekly Supp. 353a

Online Reference: FLWSUPP 1804TEJA

Insurance — Personal injury protection — Demand letter — Statute in effect at time insurance contract was executed governs interpretation of demand letter requirement — Because pertinent version of section 627.736(11) does not identify which party must submit demand letter to insurer, demand letter sent by non-party medical provider satisfied demand letter requirement for suit filed by insured, and trial court did not err in granting insured partial summary judgment on insurer’s related affirmative defense

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant-Defendant, v. MARIA TEJADA, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-284 AP & 08-586 AP. L.C. Case No. 05-19158 CC 05. February 8, 2011. On remand from the Third District Court of Appeal and on appeal from a partial summary judgment rendered by the Miami-Dade County Court, Honorable Teretha Lundy Thomas. Counsel: Ivy R. Ginsberg, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.

(Before SOTO, SAYFIE, and CUETO, JJ.)

(PER CURIAM.) Our previous opinion, published at 17 Fla. L. Weekly Supp. 78a (Fla. 11th Cir. Ct. Oct. 6, 2009), reversed the trial court’s final summary judgment and declined to review the August 17, 2007 partial summary judgment regarding the demand letter affirmative defense. The Third District Court of Appeal granted second-tier certiorari relief¹ and instructed that we determine “the issues on the demand letter and [trial court] attorney’s fees.” In a separate second-tier certiorari proceeding challenging our original opinion, the district court denied the writ and did not express that we violated any essential legal requirement. Maria Tejada v. United Auto. Ins. Co., 3D09-3527 (Fla. 3d DCA Jan. 8, 2010).

With regard to our original opinion subject to this instant remand, the district court granted the petition but did not clearly communicate whether it quashed our original opinion in whole or in part. Therefore, we review Florida’s certiorari law to determine how we should proceed. Florida law generally limits a “court’s certiorari review power” to “denying the writ of certiorari or quashing the order reviewed.” Nat’l Adver. Co. v. Broward County, 491 So. 2d 1262, 1263 (Fla. 4th DCA 1986). Second-tier certiorari courts may quash in part and approve in part circuit court appellate division opinions and judgments. Id. See City of Miami v. Berman, 129 So. 2d 445, 446 (Fla. 3d DCA 1961) (granting the writ, affirming in part and reversing in part the circuit appellate division’s judgment). Considering Nat’l Adver. Co. and Berman, we infer that the district court quashed in part our original opinion only as to the demand letter and the trial court attorney’s fees. The district court found no legal error in our original opinion as to the May 28, 2008 final summary judgment; thus, we maintain our ruling as to the final summary judgment and issue this opinion to reflect disposition regarding the demand letter and trial court attorney’s fees. We provide the facts relevant to the partial summary judgment as to the demand letter.

Maria Tejada (“insured”) filed a complaint against United Automobile Insurance Company (“insurer”) and alleged that the insurer breached the contract by declining to pay her medical expenses. The insurer’s sixth (6th) affirmative defense alleged that the insured failed to provide the insurer with proper statutory notice pursuant to section 627.736(11), Florida Statutes. The parties do not dispute that the non-party medical provider submitted the demand letter to the insurer. The lower court granted the insured’s motion for partial summary judgment and concluded that the non-party medical provider’s demand letter submitted to the insurer “was proper.”

On appeal, the insurer asserts that the lower court incorrectly granted summary judgment for the insured where the non-party medical provider sent the demand letter rather than the plaintiff-insured. The insured argues that the court properly granted summary judgment on the demand letter affirmative defense since section 627.736(11), Florida Statutes, does not specify who must give notice and only requires that the insurer receive notice.

We review this partial summary judgment de novo. Quality Med. Group, Inc. v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 821a (Fla. 11th Cir. Ct. July 8, 2009). Trial courts may not grant summary judgment unless “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials . . . admissible in evidence on file” demonstrate that no material factual dispute exists and that the law entitles the “moving party” to “judgment as a matter of law.” Fla. R. Civ. P. 1.510 (c).

In 2003, the Florida Legislature amended section 627.736(11), Florida Statutes. As a threshold issue, we determine which statutory version applied to this partial summary judgment. “[T]he statute in effect at the time the insurance contract is executed governs any issues arising under that contract.” Lumbermen Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983). See GEICO Indem. Co. v. Physicians Group, LLC, 47 So. 3d 354, 356 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2448a]. Here, the original policy declaration states that the insurer and insured entered into this insurance policy from August 20, 2002 until August 20, 2003 (Ford Dep. Tr. Ex. 12); pursuant to Ceballos, we apply the statutory version effective on August 20, 2002.

The statute’s most relevant section states:

As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation . . . .

§ 627.736(11)(a), Fla. Stat. (2002) (emphasis added). We construe a statute in accord with its “plain language.” Digital Med. Diagnostic, Inc. v. USAA General Indem. Co., 18 Fla. L. Weekly Supp. 17a (Fla. 11th Cir. Ct. Sept. 22, 2010). Here, section 627.736(11)(a) does not identify which party must submit the demand letter to the insurer; we decline to write an identity requirement into the statute. Section 627.736(11) does not entitle the insurer to “judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Therefore, we AFFIRM the partial summary judgment.

Regarding section 627.428(1), Florida Statutes, the court rendered final judgment for trial court attorney’s fees and costs in the insured’s favor. The insurer asserts that reversing the underlying final judgment requires that we also reverse the final judgment for attorney’s fees and costs. We agree and REVERSE the final judgment for attorney’s fees and costs. Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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¹United Auto. Ins. Co. v. Maria Tejada, 38 So. 3d 235 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1454e].