25 Fla. L. Weekly Supp. 909b
Online Reference: FLWSUPP 2510JSMIInsurance — Personal injury protection — Attorney’s fees — Postage and penalties — Although final judgment awarding postage and statutory penalty is not generally recovery of PIP benefits that entitles plaintiff to award of attorney’s fees, insurer that incorporated requirement to pay penalty into PIP policy converted statutory obligation into contractual obligation — Medical provider that obtained judgment for contractually obligated penalty prevailed on claim for PIP benefit and is entitled to fee award under section 627.428
CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD. a/a/o Joshua Smith, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 16-012231 COCE (55). November 13, 2017. Daniel Kanner, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., Hollwood, for Plaintiff. Jamie Peters, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDINGENTITLEMENT TO ATTORNEY’S FEES
This cause having come before the Court on Plaintiff’s Motion for Summary Judgment Regarding Entitlement to Attorney’s Fees, the Court having reviewed the motion, the entire court file the relevant legal authorities, heard argument of the parties, and being otherwise advised in the premises the Court finds as follows:
Findings of Fact
Plaintiff provided an MRI to Joshua Smith on November 23, 2015. Mr. Smith assigned his benefits to Plaintiff and Plaintiff then billed Defendant for the MRI. When Defendant did not pay for the MRI the Plaintiff sent Defendant a statutory demand letter requesting payment for the MRI along with penalty and postage. After receiving Plaintiff’s demand letter the Defendant issued a payment for the MRI in the amount of $877.99 for benefits and interest. Defendant did not, however, remit payment for the requested penalty and postage. The instant lawsuit was filed solely to recover unpaid penalty and postage.
After suit was filed and pursuant to the Defendant’s stipulation and agreement that penalty and postage was owed the Court on April 28, 2017 entered a Final Judgment in favor of Plaintiff for the unpaid penalty and postage. When the Defendant disputed Plaintiff’s entitlement to attorney’s fees the Plaintiff filed the instant Motion for Summary Judgment to establish same.
The Plaintiff proffered two arguments in support of their motion. The first argument was that the instant suit involved a dispute with an insurance company over unpaid statutory penalty [provided for pursuant to 627.736(10)] and having recovered a judgment involving a dispute under the provisions of ss. 627.730-627.7405 with an insurance company the Plaintiff was now entitled to attorney’s fees under 627.428, 627.736(8) and Ivey v. Allstate Ins. Co., 774 So, 2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]. The second argument was that the instant suit involved a dispute with an insurance company over an unpaid contractual “PIP benefit,” as set forth in the instant policy under “Florida Policy Amendment Section II — Personal Injury Protection Coverage” on page 5 of 11:
If, within 30 days after receipt of notice by us, the overdue claim specified in the notice is paid by us together with applicable interest and a penalty of 10 percent of the overdue amount paid by us, subject to a maximum penalty of $250, no action may be brought against us,
and having recovered a judgment involving an express contractual provision for “PIP benefits” the Plaintiff was entitled to attorney’s fees under 627.428.Findings of Law
This Court is bound by the holding in United Automobile Insurance Company v. ISO Diagnostic (Yoanne Quevedo), 23 Fla. L. Weekly Supp. 1000c (Fla. Cir. Ct. Appellate Division 17th Cir 2016). Based on Quevedo this Court finds against Plaintiff on their first argument but for Plaintiff on their second argument. The court in Quevedo held that for the purpose of entitlement to an award of attorney’s fees a party must obtain “PIP benefits” that were provided for in the insurance contract and not just by statute:
this Court . . . must differentiate between an obligation to pay a statutory penalty and postage costs imposed by operation of law upon a party due to that party’s behavior under the insurance contract and an obligation imposed upon a party by an express provision for which the party contracted.
Id.
Here, the Court finds that the above noted language in Defendant’s policy affirmatively alters coverage. By adding the foregoing provision to its policy the Defendant contractually obligated itself to provide it’s insured with additional funds in the event that Defendant is notified of an overdue claim. Although Defendant is required to comply with Florida Statute 627.736(10)(d) the Defendant was not required to make that obligation part of the language of its contract. By doing so, Defendant took a purely statutory obligation, which pursuant to Quevedo would not qualify as a “PIP benefit” and converted it to a contractual obligation which does qualify as a “PIP benefit” under Quevedo.
The Court therefore finds that Plaintiff’s April 28, 2017 Final Judgment is a judgment on a claim for “PIP benefits,” and that Plaintiff is therefore a prevailing insured for purposes of entitlement to attorney’s fees pursuant to Florida Statute 627.428.
ORDERED AND ADJSUDED that Plaintiff’s Motion for Summary Judgment is hereby Granted
