19 Fla. L. Weekly Supp. 571b
Online Reference: FLWSUPP 1907DORSInsurance — Personal injury protection — Coverage — Reasonable proof within 30 days — Where insurer had reasonable proof within 30 days of claim that it was not responsible for payment because claimant, who was not a named insured on policy covering vehicle involved in accident, was owner of other vehicles, payment on claims was not overdue — Accordingly, presuit demand letter was invalid
FLORASTEEN Y. DORSEY, Plaintiff, vs. METROPOLITAN GENERAL INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 10-008982-CO-39. March 26, 2012. Honorable Walter Fullerton, Judge. Counsel: James J. Dye, Morgan & Morgan, P.A., Orlando, for Plaintiff. Anthony J. Parrino, Reynolds Parrino Spano, P.A., St. Petersburg, for Defendant.
ORDER GRANTING FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE having come on for hearing on January 3, 2012, on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment, and the Court being fully advised in the premises, it is hereby,
ORDERED and ADJUDGED as followsUndisputed Facts
Plaintiff was involved in a motor vehicle accident on 1/22/2009 while occupying a vehicle which she partially owned and which was insured under a policy issued by Defendant to Youlanda Lumpkin. Plaintiff was not a “named insured” under the policy as the only named insureds were “Youlanda E Lumpkin” and “Eddie Marry”. The vehicle occupied by Plaintiff was an “insured motor vehicle” under the policy. As of 1/30/2009, Defendant had obtained information indicating that Plaintiff owned two motor vehicles with current registrations in Plaintiff’s name. Defendant contacted Plaintiff via her attorneys and advised her attorneys that Plaintiff was the owner/registrant of two motor vehicles as of the date of the subject accident. Prior to the filing of the instant lawsuit, neither Plaintiff nor her attorneys provided any indication to Defendant that the vehicles she owned were not subject to the requirements of Florida Motor Vehicle No-Fault Law. Plaintiff was not a “named insured” under the subject policy and was not entitled to benefits as such. However, pursuant to Defendant’s policy and §627.736(4)(e), Florida Statutes, Plaintiff would be entitled to PIP benefits under the subject policy as an occupant of the insured motor vehicle but would be excluded from PIP coverage if she owned a vehicle subject to the requirements of Florida Motor Vehicle No-Fault Law.Conclusions of Law
Section 627.736(4)(b), Florida Statutes, provides that PIP benefits “shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same” but that “any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Thus, if Defendant had reasonable proof that it is not responsible for payment, the 30-day period is tolled and the subject bills are not “overdue.” Crooks v. State Farm, 659 So. 2d 1266 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1984a]; Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; United Auto v. Rodriguez, 808 So. 2d 82 (Fla. 2001) [26 Fla. L. Weekly S747a].
In the instant case, Defendant had reasonable proof to establish that it was not responsible for payment. Namely, within 7 days of the claim being reported and prior to any medical bills being submitted, Defendant had obtained information indicating that Plaintiff owned a 2001 Ford and 1998 Ford and Defendant advised Plaintiff’s attorneys of the information on numerous occasions without any reply from Plaintiff or her attorneys indicating that the vehicles were not subject to the requirements of Florida Motor Vehicle No-Fault Law. Thus, pursuant to §627.736(4)(b), Florida Statutes, none of the claims of Plaintiff are “overdue.” Consequently, Plaintiff’s pre-suit demand letter was invalid as §627.736(10)(a), Florida Statutes, provides that a pre-suit demand cannot be sent unless the subject claims are “overdue.” As such, pursuant to §627.736(10)(a), Florida Statutes, Plaintiff has failed to meet a condition precedent to bringing this action.
RULING / FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
Based on the foregoing, Final Summary Judgment in favor of Defendant is GRANTED in the instant action and, conversely, Plaintiff’s Motion for Summary Judgment is DENIED. Plaintiff shall take nothing in this action and Defendant shall go hence without day. The Court will retain jurisdiction over this matter pertaining to any claims by Defendant for attorney’s fees and costs.
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