23 Fla. L. Weekly Supp. 522e
Online Reference: FLWSUPP 2306FAHIInsurance — Personal injury protection — Partial payment — Penalties — PIP insurer that partially paid claim upon receipt of pre-suit demand letter is obligated to also pay statutory penalty and postage costs
USAA GENERAL INDEMNITY COMPANY, Appellant, v. COHEN CHIROPRACTIC GROUP, P.A., A/A/O EMY FAHIE, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE11-027452 (AP). L.T. Case No. CONO08-004683. August 10, 2015. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Mardi Levey Cohen, Judge. Counsel: Douglas H. Stein, Seipp, Flick & Hosley, LLP, Coral Gables, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Appellee.
OPINION
(PER CURIAM.) USAA General Indemnity Company (“USAA”) appeals a final judgment in favor of Cohen Chiropractic Group, P.A. (“Cohen”) as to the award of the statutory penalty and postage. Having carefully reviewed the briefs, the record and the applicable law, this Court dispenses with oral argument, and finds that the final judgment should be affirmed as set forth below.
Cohen submitted a claim for personal injury protection (“PIP”) benefits to USAA, but USAA denied the claim. Cohen then served a pre-suit demand letter upon USAA pursuant to section 627.736(10)(d), Florida Statutes. Cohen requested payment of postage costs in the demand letter pursuant to section 627.736(10)(c), Florida Statutes. Upon receipt of the demand letter, USAA paid some benefits plus interest, but not the entire amount demanded by Cohen. USAA did not include the statutory penalty and postage in the tender of payment.
Cohen sued USAA in county court for the remaining PIP benefits, and the statutory penalty and postage related to USAA’s pre-suit partial payment of benefits. During the course of litigation, USAA paid the remainder of the benefits claimed and the applicable interest to Cohen. However, USAA disputed Cohen’s entitlement to the statutory penalty and postage. The county court ultimately ruled in favor of Cohen and awarded Cohen the statutory penalty and postage related to USAA’s pre-suit partial payment of benefits. This Court reviews that decision de novo as it raises a matter of statutory interpretation. Citizens Prop. Ins. Corp. v. River Manor Condo. Ass’n, Inc., 125 So. 3d 846, 849 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D820a].
Sections 627.736(d) and 627.736(c), Florida Statutes, entitle Cohen to the statutory penalty and postage. See § 627.736(10)(d), Fla. Stat. (2008); § 627.736(10)(c), Fla. Stat. (2008). These provisions contemplate a scenario where the insurer partially pays a claim upon receipt of a pre-suit demand letter. In that instance, the insurer is obligated to pay “a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty or $250” and “postal costs if requested by the claimant in the notice.” Id. Giving the statute its plain and obvious meaning, USAA is obligated to pay the statutory penalty and the postage costs related to USAA’s pre-suit partial payment of benefits. Accordingly, the final judgment in favor of Cohen Chiropractic Group, P.A. is hereby AFFIRMED. Appellant’s Motion for Appellate Attorney’s Fees is hereby DENIED. Appellee’s Motion for Appellate Attorney’s Fees is hereby GRANTED with the amount to be determined by the county court upon remand. (ENGLANDER-HENNING, TUTER and MURPHY, JJ., concur.)
