25 Fla. L. Weekly Supp. 910b
Online Reference: FLWSUPP 2510GORDInsurance — Personal injury protection — Coverage — Passenger — Owner of vehicle in state — Notice of covered loss — Insurer was not provided sufficient notice of a covered loss prior to suit where claimant failed to provide some evidence or proof that vehicle claimant owned was inoperable at time of accident — Insurer’s motion for final summary judgment based on insufficient notice of covered loss is granted
PALMS MRI DIAGNOSTIC IMAGING CENTERS, INC (Lourdes Gordon, PATIENT), Plaintiff, v. THE TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Small Claims Division. Case No. CONO-11-006806, Division 73. NEIL BROWN, M.D., P.H.D., P.A. (LOURDES GORDON) v. THE TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendant. Case No. CONO 11 013666. November 28, 2017. Steven P. Deluca, Judge. Counsel: Sadie E. Naveo, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.
Appeal pending. (17th Jud. Cir., Casee No. 18-005445 CACE)
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT BASED UPONINSUFFICIENT NOTICE OF A COVERED LOSS
THIS CAUSE having come on to be heard on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel on February 26, 2015, and being otherwise advised in the Premises, it is hereupon,
ORDERED and ADJUDGED that said Motion is GRANTED against both Plaintiffs as set forth below:
Both of the above identified Plaintiffs filed suit against Defendant seeking No-fault benefits. Both Defendants were represented by the same law firm that represented the assignor at all relevant times. Ms. Gordon was a passenger in a motor vehicle insured with Travelers when an automobile accident occurred on March 12, 2011. In reliance upon the deposition testimony of Ms. Gordon and Ms. Gordon’s mechanic, Lavenir Elie, the Court determined that Ms. Gordon owned a vehicle that had been inoperable at the time of the accident resulting in a finding that security was required. The issue now before this Court is whether Travelers had been provided sufficient notice of a covered loss prior to the filing of the subject lawsuits to determine that the vehicle had been inoperable.
Findings of Fact
The assignor, Lourdes Gordon is not a named insured under a Travelers policy of insurance. Ms. Gordon retained the law firm of Cindy Goldstein, P.A., to assist her in the pursuit of a claim for insurance benefits after her involvement in the accident while an occupant of a vehicle insured by the Defendant. At the time of making a claim for personal injury protection benefits, the law firm reported that Ms. Gordon qualified for coverage with the Defendant because she did not own any other vehicles.
In light of Ms. Gordon’s request to extend coverage, Travelers sent an application for personal injury protection benefits as well as an affidavit of non-ownership (which requires the person to verify that no operable vehicles are owned) to be completed by Ms. Gordon and returned to Travelers. Neither document was ever completed or returned.
Travelers also performed a vehicle history search and learned that, Ms. Gordon had two vehicles registered to her name: a 2005 Kia Spectra and a 1998 Cadillac Deville. Prior to litigation, Travelers determined the 2005 Kia Spectra was not an owned vehicle of Ms. Gordon. By correspondence dated March 22, 2011, Travelers requested contact from the Plaintiff’s Representative, to discuss the newly discovered but apparent vehicle ownership. Eventually a paralegal at the law firm represented on the telephone that the 1998 Cadillac Deville was or may have been inoperable but no more information was provided. In light of these new representations, Travelers sent correspondence dated April 5, 2011, to Plaintiff’s Representative and stated the following:
This letter is in follow-up to a conversation with Karen Santiago on April 5, 2011, regarding your client Lourdes Gordon. Our investigation shows that Ms. Gordon has 2 vehicles registered in her name. Please provide proof that Ms. Gordon returned the 2005 Kia Spectra to the dealership within days of purchase and is no longer in possession of the vehicle. As for the 1998 Cadillac Deville, please submit documentation from a certified mechanic that the vehicle was not operable and taken off the road on the date of the accident. Please contact me with any questions.
Prior to a response to this correspondence, on April 19, 2011, Travelers received a bill for diagnostic testing provided by Palms MRI Diagnostic Imaging Center on April 9, 2011. The bill had been submitted before any documentation had been provided to Travelers as to the non-ownership and inoperability of the vehicles registered to Ms. Gordon. Travelers responded to the billing submitted and advised that the bills had been pended so that coverage may be determined.
In light of the pending bill, Travelers followed up with the law office on April 19, 2011, and, after phone tag between the entities discussed the pending request for documentation with the firm on May 3, 2011. At this time, the Plaintiff’s Representative informed Travelers that the office had still not obtained the necessary paperwork from its client but that they were working on it. Thus, as of May 3, 2011, well over a month after the accident, the law office knew and confirmed that not a single document or information had been submitted on inoperability.
On May 10, 2011, before any documents/information were submitted, counsel for the assignor submitted a demand letter on behalf of Palms MRI Diagnostic Imaging seeking payment for date of service of April 9, 2011.
The demand letter was sent by the same law firm with whom Travelers had been in constant communications concerning the coverage issues for Ms. Gordon. Plaintiff’s Representative knew that Travelers requested this information. Travelers had not denied coverage. It had requested documents to confirm whether coverage was appropriate pursuant to §627.736, Fla. Stat. Instead of providing the documentation, the firm sent a demand letter on behalf of the Plaintiff Palms MRI. (Travelers received a bill from Neil Brown, M.D., on June 6, 2011.)
Then, on June 1, 2011, Travelers received a letter dated May 12, 2011, that indicated front and “weir” struts and shocks had been repaired on March 15, 2011, for a 1998 Cadillac Deville. Plaintiff has stipulated that this is the only document submitted to support the inoperability of the 1998 Cadillac Deville prior to the filing of the subject lawsuits. The letter does not address inoperability of whether it is the same vehicle. There is no identifying information regarding the vehicle in the letter.
On June 16, 2011, Travelers sent correspondence to the Plaintiff’s Representative and requested information again in order to confirm that the vehicle owned by the assignor had, in fact, been inoperable. Specifically, Travelers requested the name of the mechanic shop at which the repairs were completed, receipts showing payment for the repairs or parts purchased on company letterhead, any additional documentation showing that the vehicle was inoperable on the date of accident and when the vehicle became inoperable.
As stipulated to by the parties at the prior hearing, Travelers received no additional submissions pertaining to the operability of the 1998 Cadillac. It also did not receive any insurance information or any of the specifically requested information outlined within the June 16, 2011, correspondence. Instead, lawsuits were filed.
On June 14, 2011, Palms MRI Diagnostic Imaging Centers filed a lawsuit for personal injury protection benefits. On November 16, 2011, Neil M. Brown, P.A., filed suit for personal injury protection benefits.
Based on the above, this Court finds as follows:
Defendant had reason to seek an inquiry into the operability of the vehicle wherein no information or documentation regarding operability had been submitted at any time prior to suit. That there was nothing further the Defendant could have done to verify coverage as the assignor and the counsel failed to produce any evidence of inoperability yet the same counsel decided to pursue pre-suit demand letters and file suits notwithstanding the lack of information or documentation. The only document submitted months into the claim simply indicated repairs had been conducted on the vehicle, but nothing addressed inoperability. The Defendant took all steps to verify the claim on coverage before and after receipt of medical bills/claims. Without any evidence of inoperability, there would be no basis for coverage under the policy of insurance with the Defendant.
Further, this Court finds a potential insured bears the burden to provide sufficient notice of the inoperability of an owned/registered vehicle. See generally, Six Doctors Medical Center, Inc. v. Progressive, 16 Fla. L. Weekly Supp. 349b (Fla. 17th Jud. Cir. Brwd Cnty February 18, 2009); Advanced Health Medical Center a/a/o Garcia v. Mercury Ins. Co. of Florida, 16 Fla. L. Weekly Supp 205a (Fla. 11th Jud. Cir. Miami-Dade Cnty December 15, 2008). The individual may not be required to prove inoperability but must have to provide at least some information/documentation to allow the insurer to make a decision on the claim.
As to the three line letter submitted by Plaintiff’s’ law firm that was dated May 12, 2011, there is no indication in the correspondence as to the length of the repairs or whether the vehicle had been removed from the roadways. It does not state that the vehicle is the assignor’s vehicle and, in fact, there is absolutely no identifying information as to the vehicle other than being a 1998 Cadillac Deville, such as a VIN number, color, ownership, etc. It does not state if and when the vehicle became inoperable. See generally, Bedgood v. Hartford Accident and Indemnity, 384 So.2d 1363 (Fla. 1st DCA 1980), Fortune Insurance Company v. Oehme, 453 So.2d 920 (Fla. 5th DCA 1984); Quanstrom v. Standard Guaranty Ins. Company, 504 So.2d 1295 (Fla. 5th DCA 1987); Reidy v. Metropolitan, 13 Fla. L. Weekly Supp. 1076a (Fla. 15th Jud. Cir. August 10, 2006).1
Plaintiff asserts that §627.736(4)(b), Fla. Stat., requires the Court to find for Plaintiff and that the insurer had 30 days to pay or deny the claim regardless of the lack of any information or documentation. The cited statute states, in pertinent part,
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer.
. . .
However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. Id. (emphasis supplied).
This court finds that the time period had not begun to even run since there was no “notice” of a claim. Thus, there was no triggering of the 30 day time period under F.S. 627.736(4)(b) in which Defendant was required to complete the investigation and there is no evidence that Defendant dragged its feet or failed to take reasonable steps to verify the coverage claim when considering payment of the medical claim. It is quite the opposite as there were numerous request via mail and telephone and yet no compliance by the counsel for the Plaintiff’s and assignor.2
There simply may be no finding of non-compliance with the cited provision or Florida no-fault law when Defendant takes every reasonable step to verify coverage (inoperability) but is provided nothing. This finding is entirely consistent with Palmer v. Fortune Ins. Co., 776 So.2d 1019 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D278a].
A review of §627.736(4)(e)(4), Fla. Stat., supports that an individual must provide information to demonstrate the inoperability of the vehicle, wherein it provides that “The insurer of the owner of the motor vehicle shall pay personal injury protection benefits for:
Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself or herself:
a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405
Id.
Indeed, it is only logical for an individual to be required to submit some evidence or proof of inoperability as this person, if being cooperative, has the necessary documentation to be submitted. An insurer notified after the fact of a vehicle’s inoperability is only in a position to request some documents and information and, in this case, the insured took every possible step to verify inoperability. Thus, an insurer is not provided noticed of a covered loss unless and until a potential insured submits at least some evidence or some proof of the inoperability of an owned vehicle. This Court is not stating that the Plaintiff’s and assignor’s law firm must have established or proved inoperability, but that at least some or sufficient information or documentation must be submitted to establish “notice” of a claim. In this matter, no such sufficient notice of a claim was submitted.
FOR THE FOREGOING REASONS, this Court grants Defendant’s Final Summary Judgment and finds that Plaintiff’s shall take nothing from this cause of action. The Court reserves jurisdiction to determine attorney’s fees.
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1Even if the letter of May 12, 2011, received on June 1, 2011, established notice of a claim, summary judgment is appropriate as the pre-suit demand letter was premature as it was submitted prior to 30 days from the submittal of the May 12 letter. Since a pre-suit demand per F.S. 627.736(10) may only seek payment of “overdue” bills, and the bills could not be overdue until, at the earliest, July 2, 2011, the demand letter fails meaning suit is also pre-mature.
2The Court acknowledges that the insurer was unable to have direct contact with the providers or assignor. An EUO was not an option under the statute and an IME would serve absolutely no purpose.
