22 Fla. L. Weekly Supp. 619a

Online Reference: FLWSUPP 2205LANGInsurance — Personal injury protection — Doctrine of de minimis non curat lex cannot deprive PIP claimant of access to courts — Insurer’s motion for summary judgment based on this doctrine in case in which amount in controversy is $5.58 is denied

GABLES INSURANCE RECOVERY, INC. a/a/o BERNARDINO LANG, Plaintiff, vs. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-1676 SP 26. June 4, 2014. Honorable Lawrence D. King, Judge. Counsel: Marlene S. Reiss, Marlene Reiss, P.A., Miami; and Thomas Poole, for Plaintiff. Hayes G. Wood, Miami; Philip Bennett; and David Pakula, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT ON THE DOCTRINEOF DE MINIMIS NON CURAT LEX

THIS CAUSE came before the Court on May 8, 2014, on the Defendant’s Motion for Final Summary Judgment based on the doctrine of de minimis non carat lex. The Court, having reviewed all pertinent documents, and having heard argument of counsel, DENIES the Defendant’s motion. Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Defendant’s Motion for Final Summary Judgment based on the doctrine of de minimis non curat lex is DENIED.

This case arises out of a claim for Personal Injury Protection (PIP) benefits filed by GABLES INSURANCE COMPANY (GIR), as the valid assignee of Defendant Imperial’s insured, Bernardino Lang.

Defendant Imperial has moved for summary judgment on the basis that the amount in controversy is so “trifling” that it is not deserving of the Court’s time and resources. The Defendant would have the Court apply the doctrine of de minimis non curat lex, which is defined as “the law does not concern itself with trifles,” Black’s Law Dictionary, (97th ed. 1999). This Court finds that the doctrine was never intended to deny litigants access to the courts.

The parties do not dispute that the amount in controversy is $5.58. However, there is a dispute over whether GIR was aware, pre-suit, that that amount was the ultimate amount in controversy.The PIP Statute Does Not Require An Insured to Adjustthe Claim of Notify an Insurer of an Underpaymentof the Claim Prior to Filing Suit

Defendant GIR seeks to impose an obligation upon an insured or a medical provider to contact an insurer if the amount in controversy is small or if, as Imperial contends, there was a mistake in adjusting the claim. The Court finds no such obligation in the PIP Statute and the obligation to correctly adjust a claim is on the insurer — not the insured.

The PIP Statute only imposes two obligations on an insured before suit is filed. First, a PIP claimant may not file suit until his or her claim is “overdue,” which does not occur until 30 days after the insurer receives written notice of the claim. After the expiration of that 30-day period, a claimant must send a statutory pre-suit Demand Letter, in accordance with §627.736(10), which allows the insurer an additional 30 days within which to pay the claim (with penalty, interest, and postage) in order to avoid litigation. When that 30-day period expires, a PIP claimant is free to file a lawsuit with no further obligations imposed by the Statute. See Nunez v. GEICO Gen. Ins. Co., 117 So.3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a](answering certified question that an insured has no obligation to attend a pre-suit Examination Under Oath (EUO) because no such obligation appears in the Statute).PIP Benefits are in Dispute and a “Controversy” Exists

Imperial next suggests that there is “controversy” in this case because it sent a Proposal for Settlement after suit was filed, offering to pay GIR the $5.58, which GIR is alleged to have rejected.

If Imperial were confessing judgment for the $5.58, it should simply have paid that amount and this case would have concluded at that point. See Wollard v. Lloyd’s & Cos. of Lloyds, 439 So.2d 217 (Fla. 1983)(holding that settlement of a disputed case is the functional equivalent of a confession or verdict in favor of the insured).“De Minimis Non Curat Lex” Cannot Deprive a PIPClaimant of Access to the Courts

Florida’s No-Fault Statute provides mandatory PIP benefits to Florida citizens. It provides for maximum benefits of $10,000.00 and does not preclude claims for any minimum recovery of those benefits, nor does the No-Fault Statute indicate in any manner whatsoever that a PIP claimant cannot avail itself of the Small Claims Division of the county court. See §627.736(1), Fla. Stats. (2009). In other words, the PIP Statute does not set a floor under which an insured or a medical provider may not sue for insurance benefits.

By its plain language, the PIP Statute requires an insurer to pay amounts that often are relatively small, such as interest on overdue bills. See §627.736(4)(d), Fla. Stats. (2009). See Betty Penson v. State Farm Mut. Auto. Ins. Co., 10 Fla. L. Weekly Supp. 947c (Fla. 6th Jud. Cir. August 18, 2003) (reversing denial of plaintiff’s motion for summary judgment for $.35 in PIP interest where it was undisputed that plaintiff was entitled to interest on her claim and trial court denied summary judgment on basis that interest was de minimis).

This Court has previously expressed concerns over dismissing a PIP claimant’s lawsuit based on application of the doctrine on the belief that such widespread and arbitrary dismissal would result in a windfall to insurers who would reap extreme benefits by underpaying PIP claims throughout the state. See Stand-Up MRI, Inc. (a/a/o Roberto Lopez) v. United Auto. Ins. Co., Case No. 08-3924 SP 25 02. There, this Court expressed agreement with the Sixth Circuit’s decision in Betty Penson v. State Farm Mut. Auto. Ins. Co., 10 Fla. L. Weekly Supp. 947c (Fla. 6th Jud. Cir. August 18, 2003), which reversed the trial court’s denial of the plaintiff’s motion for summary judgment based upon a de minimis defense where the plaintiff sought $.35 in PIP interest and it was undisputed that the plaintiff was entitled to that interest. However, at that time, this Court felt bound by on United Auto. Ins. Co. v. Alfonso, 17 Fla. L. Weekly Supp. 887a (Fla. 11th Jud. Cir. July 1, 2010).

On further reflection, the Court finds Alfonso to be distinguishable. Alfonso involved statutory interest on insurance benefits, whereas this case involves actual insurance benefits for which Imperial’s insured duly paid insurance premiums.¹ Even if not distinguishable, this Court is bound first by The Florida Constitution, § 34.041, the PIP Statute. See Fla. Const. of 1968, art. 1, §21 (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), §34.041 (establishing schedule of filing fees to initiate suit in the county courts of Florida, including a filing fee for claims less than one hundred ($100.00) dollars).

Simply put, an insured is entitled to receive the insurance benefits for which he or she has been forced to pay premiums.

The Court has now been made aware that, in fact, the Court’s concerns have come to pass as many county courts are dismissing relatively small PIP claims, (the majority of which are currently on either rehearing or appeal), which this Court finds was never the intent of the PIP Statute.² If the Legislature wanted to impose a floor beneath which a PIP claimant could not sue for damages, it would have said so — but it has not.

Not only is there no prohibition against a PIP lawsuit for any amount within the statutory and contractual parameters, a PIP claimant has a statutory right to sue for such amounts, regardless of how “minimal” or “trivial” a court may believe the claim may be.

This Court finds that the de minimis doctrine is not a defense to a claim for PIP benefits.

Dismissal of any plaintiff’s claim — particularly in small claims court on the basis that the amount claimed is “trifling” — is wrong and the trial courts do not have authority to dismiss PIP claimant’s lawsuits based upon a purely arbitrary determination that the claim is unworthy of redress.

This Court finds that the ruling issued in Doral Health Center, P.A. (a/a/o Gema Salinas) v. State Farm Mut. Auto. Ins. Co., Case No. 13-120 SP 24 (Miami-Dade County Court, August 8, 2013) [20 Fla. L. Weekly Supp. 1088b], in which the trial court denied State Farm’s motion to dismiss the claimant’s $36.00 lawsuit to be the most persuasive and well reasoned ruling on the issue and aligns itself with Judge Ruiz’s decision in that case.

There, Judge Ruiz ruled that the de minimis doctrine should virtually never be applied in modem times, stating in pertinent part:

[D]e minimis non curat lex is an ancient legal maxim rife with the potential for abuse. The doctrine grants nearly unfettered judicial discretion to deem certain matters substantial and others trivial based upon the amount at issue. There is no doubt that it was designed to maximize efficiency and enable courts, already limited in time and resources, to focus on more pressing matters. But as set forth above, Florida law makes clear that no claims are too small for small claims court, and this Court is wary of determining whether a given lawsuit should survive a motion to dismiss simply by studying the amount in controversy.

Salinas, supra at 5.

This Court aligns itself with the remaining legal rationale set forth in Salinas:

Despite the aforementioned case law, all of which is either distinguishable or non-binding, this Court finds that Florida law does not support a position of de minimis non curat lex in small claims personal injury protection matters for breach of contract and unpaid benefits. . . . The Constitution of the State of Florida unequivocally guarantees a right of access to the courts for all claims, irrespective of the amount in controversy. See. This right of access is bolstered by Article V, Section 20, which does not require a minimum amount in controversy before a case may be filed in county court. . . .

Similarly, Chapter 34 of the Florida Statutes, which addresses the jurisdictional limits of the county courts, does not provide a jurisdictional floor, but rather a ceiling under which actions must be filed in county court. . . . See Fla. Stats. §34.041 (2013) (limiting amount in controversy to $15,000.00). In fact, Section 34.041, which establishes the schedule of filing fees to initiate a small claims suit in the county courts of Florida, unequivocally permits proceedings for claims less than $100.00. . . . Moreover, the Florida Small Claims Rules do not require a minimum amount in controversy, as the rules are “applicable to all actions at law of a civil nature in the county courts in which the demand . . . does not exceed $5000 exclusive of costs, interest, and attorneys’ fees.” Fla. Sm. Cl. R, 7.010(b); see Metro Ford, Inc. v. Green, 724 So.2d 706, 7070 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D279a](holding that “[s]mall claims courts were established to provide an open forum for the speedy resolution of disputes over minor claims.”)(emphasis added).

Consequently, dismissal of the instant case pursuant to the de minimis doctrine would not only consist of a denial of the right of access to the courts guaranteed by the Florida Constitution, but also contravene the very purpose of small claims court. In addition, Florida’s Motor Vehicle No-Fault Law, which statutorily provides a right to bring a cause of action for overdue benefits, does not require a minimum amount in controversy. . . . Therefore, dismissal of the instant case simply because the overdue benefits are minimal in nature would also appear to contravene Florida’s Motor Vehicle No-Fault Law.

Salinas, supra at 3-5. See also Karow Chiro. Center, P.A. (a/a/o Ronny Alguera) v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 518a. (Broward Cty. Ct. February 5, 2013); Orthopaedic Clinic of Daytona Beach, P.A. (a/a/o Penny Schuerer) v. Peak Prop. and Cas. Ins. Corp., 21 Fla. L. Weekly Supp. 78a (Volusia Cty. Ct. August 13, 2013)(denying dismissal of $3.36 claim for underpaid PIP benefits); Diagnostic Imaging Consultants of St. Petersburg, P.A., (a/a/o Pamela Cacciatore) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 920a (Pinellas Cty. Ct. June 10, 2013)(denying dismissal of $65.00 PIP claim and distinguishing Milton); Miami-Dade County MRI Group (a/a/o Lenis Infante) v. State Farm Mut. Auto. Ins. Co., Case No. 13-12633 SP 23 (05)(Miami-Dade Cty. Ct., February 25, 2014) [21 Fla. L. Weekly Supp. 580a](denying dismissal of $58.82 PIP claim); Radiology Regional Center, P.A. (a/a/o John Hecker) v. State Farm Mut. Auto. Ins. Co., Case No. 13SC 51559 (Lee Cty. Ct. January 22, 2014) (denying dismissal of $46.42 PIP claim); Radiology Regional Center, P.A. (a/a/o Junior Jacques) v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 505a (Fla. 15th Jud. Cir. February 21, 2013) (denying State Farm’s motion to dismiss based upon de minimis doctrine).

Kneale v. Jay Ben, Inc., 527 So.2d 917 (Fla. 3d DCA 1988) demonstrates that de minimis non curat lex is an obsolete doctrine. There, the Third District stated:

[The Respondent’s] response to the petition for certiorari here does not even seek to justify the decisions below under the applicable law. Instead, it seems to imply that the small amount involved does not justify our consideration of the case. We reject any such idea. There is nothing in the stated requirements for the invocation of our certiorari jurisdiction — or any other part of our duties — which turns on the amount involved. We do not feel put upon to be required to consider any case, however apparently insignificant, in which our jurisdiction, as here, has been properly invoked. Indeed, it is the defendant which, by insisting in three separate courts upon a position which is utterly devoid of merit, has caused whatever unnecessary expenditure of judicial resources this case involves.

Kneale, supra at n.1 (emphasis added); see also Ramirez v. United Auto. Ins. Co., 67 So.3d 1174, 1176 n. 1 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1823a] (court rejects similar contention of that in Kneale); Soler, supra (interpreting Kneale to be rejection of de minimis doctrine in PIP case).Milton v. Blackshear is Not Applicableto Dismiss a PIP Claimant’s Lawsuit

Although not a case on which Imperial relies, in this case, Milton v. Blackshear, 8 Fla. 161 (Fla. 1858), is the case on which the Alfonso court relied.

Milton, supra, does not stand for the proposition that a litigant’s lawsuit may be dismissed based solely upon a trial court’s determination that the claim is not worthy of the court’s time, particularly where the plaintiff is suing for statutory insurance benefits.

In Milton, the Court did not dismiss the plaintiff’s claim. Rather, the Court refused to grant a new trial where the jury’s verdicts in favor of the plaintiff exceeded the sums sued for by the plaintiff by $9.00 and $11.00. The Court declined to “subject the parties to further litigation” following a jury trial — actually giving the plaintiff more money than that which was sued for. Milton, supra at *5. In no manner did the Milton Court preclude the plaintiff from litigating his claim. The opposite is true. The Milton court gave the plaintiff a few more dollars than what the plaintiff claimed in his breach of contract action.

Milton is not applicable here.

This Court finds that non-statutory insurance cases are not applicable when determining issues arising under a PIP contract — such as the insured’s right to recover contractual PIP benefits, which were at issue in this case. See Nunez v. GEICO, 117 So.3d 388, 396 (Fla. 2013) [38 Fla. L. Weekly S440a] (rejecting non-statutory insurance cases governing EUOs in a PIP case and holding that EUO provisions in PIP policies are invalid because they are not included within the No-Fault Statute); Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a](rejecting non-statutory insurance cases governing IMEs in a PIP case and holding that IME is not a condition precedent to recovering PIP benefits).

In conclusion, this Court finds that it is not at liberty to substitute its judgment for the legislative intent and clear rules establishing and governing the small claims courts, nor the rationale and policy behind the PIP statute, not to mention the constitutional right that every Florida citizen has to access the courts of this State.

Accordingly, the Court DENIES Defendant Imperial’s Motion for Summary Judgment based on the de minimis doctrine.

__________________

¹Without expressing any opinion on whether interest on overdue bills is a “benefit” over which a PIP insured is entitled to sue, the distinction between a suit for actual benefits vs. interest is a sufficient factual distinction to render Alfonso non-binding upon this Court.

²See Padron Facility, Inc. (a/a/o Isidro Mejias) v. State Farm Mut. Auto. Ins. Co., Case No. 13-2253-SP-26 (Miami-Dade County Court, January 21, 2014)(granting dismissal – $26.00); Dr. Craig Pogue (Gulf Coast Chiropractic) (a/a/o Joyce Warner), Case No. 12-SC-50592, (Lee County Court, July 15, 2013)(granting dismissal – $198.36); Radiology Regional Center, P.A. (a/a/o Lazaro Diaz) v. State Farm Mut. Auto. Ins. Co., Case No. 13-SC-51488 (Lee County Court, September 16, 2013) (granting dismissal — $39.21) Radiology Regional Center, P.A. (a/a/o Jessica Lamarre) v. State Farm Mut. Auto. Ins. Co., Case No. Case No. 13-SC-51614 (Lee County Court, September 16, 2013) (granting dismissal – $77.21); Radiology Regional Center, P.A. (a/a/a Racquel Pierre) v. State Farm Mut. Auto. Ins. Co., Case No. 13-SC-51054 (Lee County Court, October 28, 2013) (granting dismissal – $23.82); Radiology Regional Center, P.A. (a/a/o Alrick Whittle) v. State Farm Mut. Auto. Ins. Co., Case No. 13-SC-051381 (Lee County Court, October 23, 2013) (granting dismissal – $23.82); Radiology Regional Center, P.A. (a/a/o Jennifer Tucker) v. State Farm Mut. Auto. Ins. Co., Case No. 13-SC-50728 (Lee County Court, June 10, 2013) (granting dismissal – $25.90); Radiology Regional Center, P.A. (a/a/o Gladys Maxine Johnson) v. State Farm Mut. Auto. Ins. Co., Case No. 13-SC-50730 (Lee County Court, June 7, 2013) (granting dismissal – $48.43); Doral Health Center, P.A. (a/a/o Gema Salinas) v. State Farm Mut. Auto. Ins. Co., Case No. 13-120 SP 24 (Miami-Dade County Court, August 8, 2013) [20 Fla. L. Weekly Supp. 1088b] (denying dismissal – $36.00); Karow Chiro. Center, P.A. (a/a/o Ronny Alguera) v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 518a (Broward Cty. Ct. February 5, 2013)(denying dismissal); Florida MRI, Inc. (a/a/o Monica Maley) v. Allstate Indem. Co., Case No. 13-SC-50728 (Broward Cty. Ct., January 20, 2011) [18 Fla. L. Weekly Supp. 417b]($4.37); Jeffrey Katzell, M.D., P.A. (a/a/o Kelly Heatherly) . Mercury Ins. Co., 18 Fla. L. Weekly Supp. 314a (Broward Cty. Ct., December 22, 2010)($75.91).

Relatively small amounts tend to aggregate very quickly when multiplied by the hundreds of thousands of PIP policyholders in Florida, resulting in a handsome profit to insurers if they can succeed in having their insureds’ claims dismissed by application of the de minimis doctrine.