21 Fla. L. Weekly Supp. 234a
Online Reference: FLWSUPP 2103SOMMInsurance — Personal injury protection — Demand letter — Where statute requires that copy of assignment of benefits accompany demand letter, providing assignment is condition precedent to suit — Proper remedy for medical provider’s failure to include assignment with demand letter is abatement or stay of claim until provider notifies court of compliance with statute — Trial court erred in ordering provider to file amended complaint with assignment attached
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, vs. PRIMARY HEALTH SERVICES a/a/o Mary Sommariba, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-363 AP. L.T. Case No. 07-7575 CC 26. January 16, 2014. On Appeal from the County Court for Miami-Dade County, Patricia Marino Pedraza, Judge. Counsel: Lara J. Edelstein, of United Automobile Insurance Company, for Appellant. Christian Carrazana, of Panter, Panter, & Sampedro P.A., for Appellee.
(Before LOPEZ, RODRIGUEZ, and FERNANDEZ, JJ.)
(PER CURIAM.) This is an appeal by United Automobile Insurance Company (hereinafter referred to as “United Auto”) to reverse summary judgment in favor of Primary Health Services (hereinafter referred to as “Primary Health”) based on the trial court refusing to consider the peer review affidavit and report; and failing to recognize Primary Health’s non-compliance with the condition precedent of providing a copy of the assignment of benefits with the demand letter pursuant to Florida Statutes section 627.736(11).
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) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].
Primary Health sued United Auto, on December 31, 2007, for the non-payment of Personal Injury Protection benefits (hereinafter referred to as “PIP”) to its insured, Mary Sommariba, after she was injured in an automobile accident on February 25, 2004. United Auto moved for summary judgment arguing that Primary Health did not have standing as it failed to provide a copy of the assignment of benefits. The trial court denied United Auto’s summary judgment motion and ordered Primary Health to “file an amended complaint and attach a copy of the subject assignment of benefits within ten (10) days.” Thereafter, the trial court found the peer review to be incomplete and entered summary judgment against United Auto as to the reasonableness, relatedness, and necessity of the provided treatment.
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) [21 Fla. L. Weekly S102c]; Lumbermans Mutual Casualty Co. v. Ceballos, 440 So. 2d 612 (Fla. 3d DCA 1983). The effective date of the insurance policy contract between United Auto and the insured is unknown as it is not part of the record. The accident occurred on February 25, 2004; therefore, the 2004 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) [25 Fla. L. Weekly S1103a]. In 2001, the legislature enacted the pre-suit notice requirement under Florida Statute section 627.736(11) 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).
The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
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.
§ 627.736(11)(a)-(b)(1), Fla. Stat. (2004).
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 impeding 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.
A statute is interpreted by its plain meaning when the statute is clear and unambiguous. Nationwide Mutual Fire Ins. Co. v. South-East Diagnostics, Inc., 766 So. 2d 229, 231 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D316a]. The legislature clearly and unambiguously intended that plaintiff provide a demand letter along with a copy of the assignment of benefits to the insurer before the onset of PIP litigation by stating “[a]s a condition precedent to filing any action for an overdue claim for benefits . . . the insurer must be provided with written notice of an intent to initiate litigation . . . ” [t]he notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity: 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.” § 627.736(11)(a), Fla. Stat (2004). (Emphasis added). Therefore, section 627.736(11) must be complied with before the complaint is filed.
“The proper remedy for premature litigation ‘is an abatement or stay of the claim for the period necessary for its maturation under the law.’ ” Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1065 FN 2 (Fla. 2001) [26 Fla. L. Weekly S473a] quoting (Bierman v. Miller, 639 So. 2d 627, 628 (Fla. 3d DCA 1994)). Herein, the trial court committed reversible error when it ordered Primary Health to “file an amended complaint and attach a copy of the subject assignment of benefits within ten (10) days.” Primary Health filed the case prematurely. The proper remedy by the trial court would have been to allow the case to mature by abating or staying the action until Primary Health notified the trial court of its compliance with section 627.736(11).
Primary Health confessed error as to the peer review affidavit. United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b].
The summary judgment is hereby reversed and this case is remanded to the trial court for proceedings consistent with this opinion.
REVERSED.
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