24 Fla. L. Weekly Supp. 847a
Online Reference: FLWSUPP 2410PINOInsurance — Personal injury protection — Demand letter — Insurer waived right to assert any deficiencies in demand letter as affirmative defense to suit where insurer failed to note any deficiencies in two pre-suit demand letters sent by provider — Where insurer failed to avail itself of opportunity to make payment without liability for fees and costs during additional thirty-day period afforded by provider’s service of third demand letter after suit was filed; thereafter, insurer secured additional abatement of action to allow provider to serve fourth demand letter with “agreed order” that provided for dismissal in event insurer made complete payment; and insurer made payment of sums demanded in third demand letter during abatement period, despite fact that provider did not serve another demand letter, but paid penalty and postage to incorrect attorney, insurer is not entitled to dismissal of action — Complete payment was not made due to error in payment of penalty and postage — No merit to argument that dismissal is warranted under maxim of de minimis non curat lex
PALMETTO PHYSICAL THERAPY, INC., a/a/o Ana Pinolay, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-18944 SP 25. June 20, 2013. Gloria Gonzalez-Meyer, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Reuven Herssein, Law Offices of Herssein & Herssein, P.A., North Miami, for Defendant.
[Affirmed (PCA): United Services Auto Assn. v. Palmetto Physical Therapy, Inc. (11th Jud. Circuit, Appellate, 3-25-2015, Case No. 13-271 AP.]
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT & FINAL JUDGMENTIN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on the 17th day of April 2013 on Plaintiff’s Motion for Summary Judgment as to Defendant’s Failure to Pay Penalty and Postage & Motion for Entry of Final Judgment in Favor of Plaintiff and was heard at 9:30 a.m. at Coral Gables Courthouse, 3100 Ponce De Leon Boulevard, Coral Gables, Florida 33134. Reuven Herssein, Esq. appeared on behalf of the Defendant, United Services Automobile Association, and Majid Vossoughi, Esq. appeared on behalf of the Plaintiff, Palmetto Physical Therapy, Inc. Having heard argument from counsel for both parties and being otherwise fully advised in the premises this Court makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. On 01/28/11, and prior to filing of the instant lawsuit, Law Office of Carlos O. Gomez, P.A., submitted to Defendant a pre-suit demand letter pursuant to Fla. Stat. 627.736(10) (“Plaintiff’s First Pre-suit Demand”).
2. On 03/02/11 Defendant acknowledged receipt of Plaintiff’s First Pre-suit Demand Letter but said response did not note any alleged deficiencies within Plaintiff’s First Pre-suit Demand Letter. Instead, despite being on notice of Plaintiff’s intent to file suit and otherwise being able to locate the policy holder, claim #, date of loss, name of the claimant, name of the medical provider, and dates of service demanded the Defendant made a determination that no additional benefits, interest, penalty or postage was due Plaintiff:
“upon review, we have determined the above mentioned dates of service were paid per FL Statutory guidelines. Therefore, no additional benefits, interest, penalty or postage are owed.”
3. On 09/13/11 and prior to filing of the instant lawsuit, Law Offices of Julio R. More, P.A., submitted to Defendant yet another pre-suit demand letter pursuant to Fla. Stat. 627.736(10) (“Plaintiff’s Second Pre-suit Demand”).
4. On 10/12/11 Defendant acknowledged receipt of Plaintiff’s Second Pre-suit Demand Letter but said response did not note any alleged deficiencies within Plaintiff’s Second Pre-suit Demand Letter. Instead, despite being on notice of Plaintiff’s intent to file suit and otherwise being able to locate the policy holder, claim #, date of loss, name of the claimant, name of the medical provider, and dates of service demanded the Defendant made a determination that no additional benefits, interest, penalty or postage was due Plaintiff:
“upon review, we have determined the above mentioned dates of service were paid per FL Statutory guidelines. Therefore, no additional benefits, interest, penalty or postage are owed.”
5. On 11/23/11 the Plaintiff filed suit alleging breach of contract by Defendant due to “(i) failing or refusing to make full payment of Plaintiff’s bills, (ii) improperly paying less than what it contractually agreed to pay, and (iii) failing or refusing to pay the proper amount of interest and/or penalty and postage in violation of Florida law.” (Complaint, ¶¶ 19, 30).
6. On 06/04/12 Defendant served its Answer & Affirmative Defenses raising as its sixth affirmative defense an allegation that Plaintiff has failed to serve a valid pre-suit demand letter. On the same day Defendant also served the Plaintiff with its Notice of Intent to Move for Sanctions Pursuant to Fla. Stat. 57.105 as well as Defendant’s 57.105 Motion for Sanctions.
7. In response to Defendant’s 57.105 related motions the Plaintiff provided the Defendant with yet a third opportunity to make payment without incurring any liability, attorney’s fees or costs. Specifically, on 06/23/12, Plaintiff served Defendant with yet another pre-suit demand letter (“Plaintiff’s Third Demand Letter”) and same was served by Plaintiff’s counsel of record, Majid Vossoughi, P.A. Plaintiff’s Third Demand Letter was served on Defendant’s counsel of record as well as the individual specified by the Defendant for the purpose of receiving pre-suit demand letter. Plaintiff’s Third Demand Letter provides for payment of benefits and interest to the medical “provider” and penalty & postage to “Majid Vossoughi, P.A.”:
The check for benefits and interest should be made payable to the provider and penalty and postage made payable to Majid Vossoughi, P.A. Please send the provider’s check to our office with the check for penalty and postage.
Plaintiff’s Third Demand Letter (¶ 11.)
8. On 06/23/12 Plaintiff also served its Motion and Stipulation to Stay and/or Abate attaching a copy of Plaintiff’s Third Demand Letter and agreeing to a stay for thirty (30) days so as to afford the Defendant a third opportunity to make payment without any liability:
On 06/23/12 Plaintiff served Defendant with its “Demand Letter Under Florida Statute 627.736(10)” and a copy of same is attached as Exhibit “A”. Plaintiff stipulates to a stay of this action for a period of thirty days with no further activity pending a determination on the part of the Defendant to make payment on Plaintiff’s claim for PIP benefits in accordance with the attached demand letter.
(Plaintiff’s Motion & Stipulation to Stay and/or Abate, ¶3.)
9. On 6/23/12 Plaintiff also sent correspondence to counsel for Defendant reiterating that Defendant is provided with yet another opportunity to pay. Said correspondence provides in pertinent part:
This correspondence confirms receipt of your 57.105 letter & motion pertaining to an alleged deficiency with Plaintiff’s pre-suit demand letter.
Insofar as a failure to meet conditions precedent can be cured post suit, please be informed that we have served a subsequent demand letter on your client and same does in fact account for prior payments as alleged within your 57.105. We have also served a Motion & Stipulation to Stay and/or Abate so as to provide your client with a third opportunity to make payment.
10. Despite the foregoing, the Defendant did not make payment to Plaintiff within thirty (30) days of Plaintiff’s Third Demand Letter and/or Plaintiff’s stipulation and correspondence inviting payment within thirty (30) days as referenced and quoted above. Instead on 07/9/12, Defendant served a motion seeking to strike Plaintiff’s Third Demand Letter and asking this Court for sanctions; that is, Defendant served a motion seeking to strike the very same document that provided Defendant with yet another opportunity to make payment without incurring any liability or attorney’s fees or costs.
11. On September 17, 2012, after expiration of Plaintiff’s Third Demand Letter, counsel for Defendant sent to this Court an “Agreed Order” without the express agreement of the Plaintiff or its counsel. This purported “Agreed Order” provided for the abatement of the action through the re-submission of yet another demand letter by the Plaintiff or the case will be dismissed. This purported “Agreed Order” also provided that any payments made during the abatement shall not be considered a confession of judgment and that if the Defendant pays the amount requested within Plaintiff’s “re-submitted” demand letter plus applicable penalty, interest and postage the case shall be dismissed. On September 26, 2012 this court entered this purported “Agreed Order” under the assumption that same was agreed upon by the parties.
12. Plaintiff did not “re-submit” a fourth demand letter to the Defendant; however, on 10/19/12, and almost four months after service of Plaintiff’s Third Demand Letter the Defendant tendered payment to Plaintiff, presumably in accord with the purported “Agreed Order” that was entered by the Court on September 26, 2012. Specifically, Defendant tendered draft # 0003821193 in the amount of $207.55 for PIP Benefits & Interest payable to “Palmetto Physical Therapy” and draft # 0003829607 in the amount of $30.76 for Penalty & Postage payable to “Carlos O Gomez Attorney At Law”. Defendant acknowledges that it did not properly issue payment of penalty & postage to Majid Vossoughi, P.A. citing to “inadvertence.”
13. On 12/12/12 Plaintiff served its Motion for Summary Judgment arguing entitlement to judgment as a matter of law due to Defendant’s failure to make payment of statutory mandated Penalty & Postage as provided by Fla. Stat. 627.736(10)(c) and (d). Plaintiff argues that binding decisional precedent provides that Defendant’s failure to note any deficiencies in response to Plaintiff’s First and Second Pre-suit Demand Letters is a waiver of asserting any deficiencies post suit. Plaintiff also argues that upon service of Plaintiff’s Third Pre-suit Demand Letter the Defendant was afforded yet another opportunity to make payment without incurring any liabilities and that Defendant failed to make payment within thirty (30) days. Plaintiff notes that despite the purported “Agreed Order” of September 26, 2012 it did not serve a fourth or “re-submitted” demand letter yet the Defendant made a decision to tender payment post suit. Plaintiff argues that said payment is either a post suit payment tantamount to a confession of judgment triggering entitlement to attorney’s fees or costs or in the alternative, if the post suit payment was made in accord with the purported “Agreed Order” of September 26, 2012 and Plaintiff’s Third Pre-suit Demand, then Defendant ought to have made payment of Penalty & Postage in accordance with the demand and to Majid Vossoughi, P.A. To the extent that Defendant failed to do so, the Plaintiff argues it is entitled to judgment as a matter of as payment of penalty and postage on payment of overdue PIP benefits is mandated by the PIP statute.
14. In response, the Defendant argues that the case should be dismissed since Defendant made payment “during the abatement” although Defendant acknowledges that it did not properly issue payment of penalty & postage citing to “inadvertence.” Defendant further argues that the case should be dismissed due to Plaintiff’s failure to “re-submit” a fourth demand letter in accordance with the purported “Agreed Order” of September 26, 2012; however, despite a failure to “re-submit” a fourth demand letter the Defendant opted to tender payment of overdue PIP Benefits and Interest in the amount of $207.55 post suit. Finally, Defendant argues that any failure on the part of the Defendant to duly issue payment of Penalty & Postage to counsel for Plaintiff, Majid Vossoughi, P.A., should be disregarded by this Court under the maxim de minimis non carat lex despite the fact that the instant lawsuit was not filed solely for the purpose of securing postage, penalty, or attorney’s fees and costs as evidenced by Defendant’s payment of overdue PIP Benefits and Interest in the amount of $207.55 subsequent to suit.
LEGAL ANALYSIS
The pre-suit notice requirement of the PIP statute is intended to place insurance carriers on notice of intent to initiate suit and provide the carrier with a last ditch effort to resolve PIP claims without litigation. Fla. Stat. 627.736(10).
The record evidence before this Court reflects that Plaintiff served Defendant with no less than two pre-suit demand letters prior to filing suit. On each occasion the Defendant was placed on notice of Plaintiff’s intent to file suit and took advantage of the opportunity by fully identifying the claim; however, the Defendant made a determination not to issue any additional benefits, interest, penalty or postage. Further, the record before this court reflects that on both occasions when responding to Plaintiff’s pre-suit demand letters the Defendant failed to note any deficiencies with either of the pre-suit demands; however, after suit was filed the Defendant served a 57.105 motion seeking dismissal and sanctions alleging a failure on the part of Plaintiff to meet the pre-suit notice requirements of the PIP statute. The pre-suit notice requirement of the PIP statute is not intended as a mechanism for insurers to sandbag plaintiff’s post-suit; but as noted is intended as a final effort to resolve PIP claims without litigation. Having failed to note any deficiencies with either of Plaintiff’s pre-suit demand letters, this court finds, as a matter of law, that Defendant has waived its right to assert any deficiencies post suit. This result is mandated by binding decisional precedent from the 11th Judicial Circuit sitting in its appellate capacity. United Automobile Insurance Company v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (11th Judicial Circuit, acting in its appellate capacity, 2010).
Subsequent to filing suit the Defendant was afforded yet a third opportunity to make payment without incurring any liability upon service of Plaintiff’s Third Demand Letter. Although the Plaintiff stipulated “to a stay of the action for a period of thirty days with no further activity pending a determination on the part of the Defendant to make payment”, the record evidence reflects that Defendant did not take advantage or make payment within thirty days. Moreover, this court notes that binding decisional precedent from the 11th Judicial Circuit sitting in its appellate capacity also holds that “neither abatement nor dismissal is required” when sending a secondary demand letter during the pendency of a lawsuit. United Automobile Insurance Company v. Dora Mauricio Ubeda, 18 Fla. L. Weekly Supp. 32a (11th Judicial Circuit, acting in its appellate capacity, 2010). Further, Plaintiff’s Third Demand Letter was also accompanied by an agreement and correspondence to counsel for Defendant agreeing to a stay for thirty (30) days pending a determination on the part of Defendant to make payment. The record evidence reflects that not only did the Defendant did not make payment within thirty (30) days of the Plaintiff’s Third Demand Letter but the Defendant actually served a motion seeking to have same stricken seeking further sanctions. As such, this court finds, as a matter of law that Defendant also failed to take advantage of Plaintiff’s Third Demand Letter by failing to make payment within thirty (30) days and avoiding liability altogether.
The next issue to be addressed is the Order entered by this Court on September 26, 2012 under the assumption that same was an Order agreed upon by the parties although as previously noted, there was no express agreement to this purported “Agreed Order” on the part of the Plaintiff or its counsel. This Order provides for the abatement of the action from the date of the Order until 31st day after counsel for Defendant receives “Plaintiff’s resubmitted Demand Letter” (¶ 2); re-submission of a “Demand Letter” by the Plaintiff to counsel for Defendant and Defendant (¶ 3); and dismissal of the case in the event of Plaintiff’s failure to “resubmit” (¶ 4). The Order further contemplates payment on the part of Defendant during abatement without incurring fees and cost (¶¶ 5 and 6). Finally, the Order provides in paragraph seven (7):
If the Defendant pays the Plaintiff the amount requested in the Plaintiff’s resubmitted Demand Letter, plus applicable penalty, interest, and postage, the case shall be dismissed.
(“Agreed Order” ¶ 7)
The undisputed record evidence reflects that the Plaintiff did not “re-submit” a fourth demand letter to the Defendant; however, on 10/19/12, and almost four months after service of Plaintiff’s Third Demand Letter the Defendant tendered $207.55 for overdue PIP Benefits & Interest (payable to “Palmetto Physical Therapy”) and $30.76 for Penalty & Postage (payable to “Carlos O Gomez Attorney At Law”). Assuming facts in the light most favorable to the Defendant, the Defendant issued payment pursuant to Plaintiff’s Third Demand Letter that was served post suit and attached to Plaintiff’s Motion and Stipulation to Stay and/or Abate. This fact is undisputed since the “Agreed Order” submitted by counsel for Defendant and entered by the Court was an Order entered pursuant to Plaintiff’s Motion and Stipulation to Stay and/or Abate attaching Plaintiff’s Third Demand Letter (that is, the post suit demand letter served by Majid Vossoughi, P.A.). Defendant has acknowledged that it did not properly issue payment of penalty & postage citing to “inadvertence.”
Ordinarily, where an insurance company pays on a claim after the insured files suit but before judgment is rendered, the payment constitutes a confession of judgment thereby entitling the Plaintiff to attorney’s fees and costs. Ivey v. Allstate Ins. Co., 774 So.2d 679, 685 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla. 1983) and its progeny. In the instant case, and assuming facts in the light most favorable to the Defendant, the Defendant issued payment in reliance on the “Agreed Order” submitted by its counsel of record and same contemplates payment on the part of Defendant during abatement without incurring fees and cost (¶¶ 5 and 6). However, if the Court was to enforce provisions of the Order allowing payment without incurring attorney’s fees and costs the Court has to also enforce additional provisions of the Order and specifically paragraph seven (7) of the Order which provides for dismissal only if complete payment inclusive of penalty and postage is made:
If the Defendant pays the Plaintiff the amount requested in the Plaintiff’s resubmitted Demand Letter, plus applicable penalty, interest, and postage, the case shall be dismissed.
(“Agreed Order” ¶ 7)
If the post suit payment was made in accord with the purported “Agreed Order” of September 26, 2012 and Plaintiff’s Third Pre-suit Demand, then Defendant ought to have made payment of Penalty & Postage in accordance with the demand and to Majid Vossoughi, P.A. Defendant cannot argue dismissal due to payment “during the abatement” of the action on the one hand and at the same time acknowledge a failure to properly issue payment of penalty & postage citing to “inadvertence.” To enforce certain provisions of the Order providing for payment post suit without incurring attorney’s fees and costs (¶¶ 5 and 6) without enforcing other provisions requiring complete payment inclusive of Penalty & Postage (¶ 7) is not an equitable result or something this Court is willing to do. The “Agreed Order” provides for dismissal only if Defendant makes complete payment inclusive of penalty & postage (¶ 7); however, Defendant concedes that it did not duly issue payment of penalty & postage despite numerous opportunities to do so. As such, dismissal of Plaintiff’s claim is improper and Defendant cannot have its cake and eat it too. Florida law mandates payment of Penalty & Postage on payment of an overdue claim for PIP benefits made in response to a pre-suit demand letter. Fla. Stat. 627.736(10)(c) &(10)(d).
Finally, Defendant argues for dismissal of the case citing to the maxim de minimis non curat lex. The court has reviewed the cases cited by the Defendant but said cases are distinguished from the facts of the present case. In the present case Plaintiff filed suit alleging a failure to make full payment of its bills, failure to make payment less than what Defendant was contractually obligated to pay, and a failure to pay the proper amount of interest and/or penalty and postage in violation of Florida law. (Complaint, ¶¶ 19, 30). This suit was not filed solely for securing payment of what Defendant now characterizes as minimal or inconsequential so as overcome its failure to duly tender penalty and postage. The record before the court reflects that it was not until after Plaintiff filed suit and survived a litany of 57.105 related motions that Defendant finally made a determination to make payment of no less than $207.55 for overdue PIP benefits, an amount that this court neither considers “very small” nor “trifling”.SUMMARY AND CONCLUSION
Defendant was served two pre-suit demand letters but failed to make payment of overdue PIP benefits to Plaintiff prior to filing suit. Defendant was afforded no less than two opportunities post suit to make payment to Plaintiff but failed to make complete payment. Defendant acknowledged its obligation to make payment of overdue PIP benefits to Plaintiff when it tendered overdue PIP benefits in the amount of $207.55 but failed to make payment of statutorily mandated Penalty & Postage despite repeated opportunities to do so. Florida law mandates payment of Penalty & Postage on payment of an overdue claim for PIP benefits and Defendant has acknowledged that it did not properly issue payment of penalty & postage. Accordingly, Plaintiff is entitled to judgment in the amount of $30.76, said sum representing payment of Penalty & Postage as mandated by Fla. Stat. 627.736(10)(c) &(10)(d).
Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment and Motion for Entry of Final Judgment in Favor of Plaintiff is GRANTED.
IT IS ADJUDGED that Plaintiff, PALMETTO PHYSICAL THERAPY, INC., recover from Defendant, UNITED SERVICES AUTOMOBILE ASSOCIATION the sum of $30.71 representing statutorily mandated payment of penalty & postage on payment of overdue PIP benefits that shall bear interest at the rate of 4.75% per year, for which let execution issue. The Court reserves jurisdiction to award Plaintiff attorney’s fees and costs associated with this action
