27 Fla. L. Weekly Supp. 80a

Online Reference: FLWSUPP 2701HERBInsurance — Personal injury protection — Overdue claim — Interest, penalty, and postage — Insurer who paid PIP benefits within 30 business days of receipt of demand letter is also obligated to pay 10% penalty, interest and postal costs

MED-UNION MEDICAL CENTER, INC. a/a/o Joana Herbello, Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 2018-017095-SP-25-03. February 26, 2019. Patricia Marino Pedraza, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Vivan Lasaga, Law Office of Haydee De La Rosa-Tolgyesi, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS MATTER, having come before the Court for hearing on February 25, 2019, on Plaintiff’s Motion for Final Summary Judgment, the Court having reviewed the respective motion, read relevant legal authority, heard argument from counsel of each party, and having been sufficiently advised in the premises, finds as follows:

FACTUAL AND PROCEDURAL BACKGROUND

On or about March 17, 2014, Joanna Herbello, was involved in an automobile accident in which she sustained injuries. As a result thereof, Ms. Herbello sought medical attention at Med-Union Medical Center, Inc. (hereinafter referred to as “Plaintiff”) In exchange for providing medical services to Ms. Herbello, Plaintiff accepted an Assignment of Benefit to Ms. Herbello’s Personal Injury Protection (PIP) benefits. Bills were submitted by the Plaintiff to Geico General Insurance Company (hereinafter referred to as “Defendant”). The Defendant tendered partial payment for the services rendered by the Plaintiff pursuant to 80% of the schedule of maximum charges referenced in Fla. Stat. §627.736(5)(a)(1)(2012).

A Demand Letter was submitted on behalf of the Plaintiff for overdue Personal Injury Protection (PIP) benefits. Soon thereafter, the Defendant responded to Plaintiff’s Demand Letter indicated that it was including a payment for PIP benefits and for interest, penalty, and postage, however the Defendant failed to include payment for the applicable interest, penalty, and postage as indicated. As such, the subject action was filed by the Plaintiff. The Defendant, by way of its Answer and Affirmative Defenses, indicates that it paid the bills at issue and has exhausted benefits and as such, no further amount is due and owed. In response, the Plaintiff has filed its Motion for Final Summary Judgment regarding the issue of overdue interest, penalty, and postage.

ANALYSIS

Florida Statute 627.736(10)(c) states in pertinent part:

Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if requested by the claimant in the notice, when the insurer pays the claim. (Emphasis added)

Additionally, Florida Statute 627.736(10)(d) states in pertinent part:

If, within 30 business days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250 no action may be brought against the insurer. (Emphasis added)

Pursuant to the statutory language of 627.736(10)(d) the Defendant is obligated to make an additional payment of 10% of the overdue amount paid along with postal costs, if payment of the overdue claim is made within 30 days after receipt of the notice of intent to initiate litigation

In the instant case, in support of its Motion for Final Summary Judgment, the Plaintiff has filed Defendant’s Demand Letter Response which Defendant indicates that it mailed payment for PIP benefits, interest, penalty, and postage under separate cover. The Plaintiff has also filed a payment for PIP benefits along with the envelope in which said payment was enclosed in. This Court finds that the Plaintiff has established its prima facie case as such, the burden now shifts to the Defendant to establish a genuine issue of material fact.¹

In opposing the Plaintiff’s Motion for Final Summary Judgment, the Defendant concedes as to its obligation to tender payment for the applicable interest but argued that it is not obligated to tender payment for the penalty and postage. The Defendant failed to present any evidence to create a genuine issue of material fact or present case law supporting its position. Rule 1.510(C) provides in pertinent part that “judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Beverly v Gumren, No. 3D18-808 (Fla. 3rd DCA 2019) [44 Fla. L. Weekly D205a] quoting Bende v. Furr & Cohen, P.A., 941 So. 2d 425 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2489b] (affirming summary judgment where appellant failed to file affidavits or other sworn statements in opposition to appellee’s motion for summary judgment, and appellee’s motion and sworn proof in support thereof conclusively established the nonexistence of any genuine issue of material fact and entitlement to a judgment as a matter of law); Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984).

Therefore, it is ORDERED and ADJUDGED that as a matter of law, Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED. The Defendant shall tender payment for the applicable interest, penalty and postage.

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¹The Court notes that prior to the subject hearing, the Defendant filed a Confession of Judgment for the applicable interest however has failed to tender payment for the overdue penalty and postage.