26 Fla. L. Weekly Supp. 324a
Online Reference: FLWSUPP 2604ZELAInsurance — Personal injury protection — Summary judgment — Medical provider’s motion for summary judgment is granted where evidence demonstrates that insurer agreed to pay benefits, statutory penalty, and postage in settlement of claim, but insurer has submitted no proof of payment or evidence related to routine business practice to support finding that check was mailed
FUNCTIONAL EVALUATION TESTING OF FLORIDA, INC. (a/a/o Zelaya, Darwin), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2017-SC-002654. June 4, 2018. Sherri L. Collins, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Kevin McAllister, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 24, 2018, upon the Plaintiff’s Motion for Final Summary Judgment, and the Court having considered the summary judgment evidence, including the deposition testimony of Danny Guerra, Defendant’s corporate representative, and the Affidavit of Aura Brooks, Managing Attorney at the law firm representing Plaintiff in this matter, having heard argument of counsel and being otherwise fully advised, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED, for the reasons set forth below:
Defendant argues the Plaintiff has not properly plead a Complaint for which the Court can hear Plaintiff’s Motion for Summary Judgment. The Court relies upon Plaintiff’s correspondence to Defendant pre-suit. Defendant’s August 29, 2016 letter response to Plaintiff confirming it would pay the amounts requested to Plaintiff and the testimony of Defendant’s Corporate Representative in the transcript filed with the Court. Defendant’s Corporate Representative testified in his deposition, on page 9 line 3, that he agreed with the facts set forth in paragraph 3 of the Complaint, e.g., that on or about August 29, 2016, Windhaven Insurance Company had agreed to pay as $524 in benefits, $53.07 statutory penalty, $5.29 postage and $6.68 interest in settlement of a claim for personal injury protection (“PIP”) benefits. (emphasis added) The Court finds this constitutes settlement of a claim for PIP benefits for services rendered by Plaintiff to Darwin Zelaya.
The Court also finds that the Defendant has not submitted any evidence supporting proof of mailing of the checks, pursuant to the Settlement, that would oppose Plaintiff’s Summary Judgment. This Court finds that there is no record evidence of mailing checks at issue to the Plaintiff including testimony of Defendant’s Corporate Representative which does not satisfy the “Mailbox Rule”. Defendant’s Corporate Representative was not able to provide proof of payment or evidence related to the routine practices for the business to support that the check was mailed. This Court finds that Defendant failed to deliver the checks in violation of the Settlement Agreement, and thus, the Defendant violated the Settlement Agreement by failing to deliver the checks/amounts agreed upon with the Plaintiff.
Finally, the Court finds that Affidavit of Aura Brooks satisfactorily demonstrates that no checks were received by Plaintiff from the Defendant.
Based upon this Court’s findings addressed summarily above, the Court finds that there is no genuine issue as to any material fact and that the Plaintiff is entitled to a judgment as a matter of law. Accordingly it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED and a Final Summary Judgment is entered in favor of the Plaintiff in the amount of $589.04, together with pre-judgment interest from August 29, 2016, that shall bear interest at the rate of 5.72% per year, for which let execution issue. The Court reserves jurisdiction to consider Plaintiff’s request for an award of attorney’s fees and costs associated with this action.
