21 Fla. L. Weekly Supp. 133a
Online Reference: FLWSUPP 2102MORAInsurance — Personal injury protection — Claims — Failure to submit — Anticipatory breach — Although there may have been question of fact as to whether PIP policy was cancelled at time of accident in view of insurer’s previous rescission of cancellations when late premium payments were made, anticipatory breach of policy did not excuse insured from obligation to timely submit medical bills to insurer — Insurer cannot be liable for medical bills that were not timely and properly submitted
STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. JOSEPHINE MORALES, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 12-10027CACE. L.T. Case No. 08-17104COCE(50). September 3, 2013. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Sharon Zeller, Judge. Counsel: Nancy Gregoire, Kirschbaum, Birnbaum, Lippman & Gregiore, PLLC, Fort Lauderdale; and Matthew Hellman, Matt Hellman, P.A., Plantation, for Appellant. Edgar Velazquez, Law Office of Cytryn & Velazquez, P.A., Coral Springs; and Nancy Little, Nancy Little Hoffman, PA., Fort Lauderdale, for Appellee.
(Before STREITFELD, GATES and PHILLIPS, JJ.)
(PHILLIPS, Judge.)OPINION
Appellant, State Farm Fire and Casualty Company (“State Farm” or “Defendant”), brings this appeal from the trial court’s entry of final summary judgment in favor of Appellee, Josephine Morales (“Morales” or “Plaintiff”). This Court has jurisdiction to consider the appeal pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A) and section 26.012(1), Florida Statutes. Having carefully considered the briefs filed by the parties, the record, and applicable law, we dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and reverse the decision of the trial court.Facts
State Farm issued an automobile insurance policy to Morales in August 2001. The policy required monthly premium payments due on the 17th of each month. The record reflects that Morales had a history of late payments. State Farm would cancel the policy, and after Morales’ late payment, would prospectively reinstate the policy. On February 25, 2003, State Farm sent a letter notifying Morales that a payment was due by March 11, 2003. The record reflects that March 13, 2003, State Farm cancelled Morales’ policy. On March 15, 2003, Morales sustained injuries as a result of an automobile accident. Morales sought medical treatment between March 29, 2003 and July 21, 2003, and additional medical treatments at Florida Orthopaedic Center between September 22, 2003 and October 9, 2003. On November 29, 2007, Morales filed her Second Amended Complaint based on a claim for breach of contract for failure to pay personal injury protection (“PIP”) benefits.1 On January 8, 2008, State Farm filed its initial motion for summary judgment based on Morales’ medical providers failure to submit required forms within thirty-five (35) days of treatment, pursuant to section 627.736(5)(c), Florida Statutes. On June 23, 2009, the trial court denied State Farm’s motion for summary judgment. On May 18, 2010, the trial court denied Defendant’s Motion for Reconsideration and Motion to Renew Defendant’s Motion for Summary Judgment. The trial court based its reasoning for denial on Peachtree v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D555d], and determined that State Farm’s denial of all benefits under the policy relieved the providers of any duty to submit the forms. On May 12, 2011, the trial court entered its Amended Order on Plaintiff’s & Defendant’s Motions for Summary Judgment and Order on Defendant’s Motion for Reconsideration and/or Rehearing on Defendant’s Motion for Final Summary Judgment, and found that the notice of cancellation sent by State Farm to Morales was defective. On March 8, 2012, the trial court granted Morales’ Motion for Summary Judgment, and entered Final Judgment. This appeal followed.Analysis
Under Florida law, an order denying summary judgment is reviewable upon an appeal from a final judgment. See Portis v. Seatruck, Inc., 98 So. 3d 1234, 1235 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2326a](recognizing “Florida Rule of Appellate Procedure 9.110(h) authorizes an appellate court to review ‘any ruling or matter occurring before filing of the notice [of appeal]’ ”). Further, “[t]he standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a].
State Farm argues that the trial court erred when it entered its May 18, 2010 order denying Defendant’s Motion for Reconsideration and Motion to Renew Defendant’s Motion for Summary Judgment by misinterpreting and misapplying Peachtree v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D555d]. State Farm further contends that the trial court erred in finding that State Farm’s notice of cancellation was an anticipatory breach based on Peachtree. In its May 18, 2010 Order, the trial court stated:
[j]ust 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.
(R. 786). We conclude the trial court erred in reaching this conclusion.
The Fourth District Court of Appeal interpreted Peachtree differently, and expressly stated that Peachtree:
merely stands for the limited proposition that, where an insurer has notified an insured that it no longer considers medical treatment necessary and does not intend to honor future claims, it is unnecessary, under section 627.736(4)(b), Florida Statutes, for an insured to wait thirty days from the date a claim is submitted before filing a breach of contract action as to accrued claims. Unlike the petitioner in this case, the insured in Peachtree continued to receive medical treatment and submitted additional bills to the insurance company.
Rader v. Allstate Ins. Co., 789 So. 2d 1045, 1047 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1430a] (emphasis added). The facts of the instant case are inapposite to the facts in Peachtree. In Peachtree, the plaintiff actually submitted medical bills to the insurance company for payment. In the instant case, it is undisputed that Morales never submitted medical bills, but rather, filed the instant action, arguing that an alleged anticipatory breach relieved her of any obligation to timely submit CMS 1500 or UB 92 forms to State Farm. However, Morales was under a statutory obligation to timely submit her medical bills on proper forms to State Farm for payment. See § 627.736(5)(c), Fla. Stat. (requiring that medical bills be timely submitted within thirty-five (35) days of treatment). While it may be that there was an issue of fact as to whether the policy was cancelled at the time of the accident based on the history of State Farms’ acceptance of Morales’ late payments, it is clear under Rader, that Morales still had an obligation to timely submit her medical bills. Since the medical bills were not timely and properly submitted, State Farm cannot be liable for payment. See State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D150b](stating the “clear intent of this statutory provision was to impose time limits on the submission of medical bills.”).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the trial court’s final judgment is REVERSED and REMANDED with instructions to enter final judgment in favor of State Farm Fire and Casualty Company, and against Morales.(GATES and STREITFELD, JJ., concur.)
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1Subsequently, on March 25, 2008, Plaintiff filed her Third Amended Complaint.
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