6 Fla. L. Weekly Supp. 109a
Insurance — Personal injury protection — Error to enter summary judgment in favor of insurer based on payment of insured’s bills within 30 days — Termination letter was repudiation of contract giving rise to cause of action — Insurer’s contention that even if they exercise right to deny further benefits they should still be permitted to take 30 days to evaluate any additional bills is rejected
Certiorari denied at 25 Fla. L. Weekly D555d
AMY J. WALDEN, Appellant, v. PEACHTREE CASUALTY INSURANCE COMPANY, Appellee. 5th Judicial Circuit, Appellate Division. Appellate Case No. 98-110-CA. County Case No. 97-2224-SP. Opinion filed November 5, 1998. Appeal from the County Court for Marion County. The Honorable Frances S. King. Counsel: Jay G. Sherwin, Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellant. Daniel F. Pilka and Caroline A. Adams, Brandon, for Appellee.
OPINION
(STANCIL, H.) We reverse the lower court’s order of final summary judgment for Appellee based on the payment of the insured’s bills within 30 days. We believe the termination letter was a repudiation of the contract giving rise to a cause of action. The PIP statute does not abrogate the common law doctrine of anticipatory breach. We do not dispute Appellee’s right under the statute to terminate coverage. However, we recognize that the insured’s right to contest termination of benefits may be a consequence of that action. We disagree with Appellee’s contention that even if they exercise their right to deny further benefits they should still be permitted to take the 30 days to evaluate any additional bills. Therefore, we reject Appellee’s argument that they never refused payment of the insured’s bills even though they said they were not going to pay them.
The Second District Court was faced with similar facts in Donovan v. State Farm Fire and Casualty Company, 574 So.2d 285 (Fla. 2nd DCA 1991). Examining the issue of when the statute of limitations begins to run, the Second District Court held that a specific refusal to pay a claim is the breach which triggers the cause of action. In Donovan the date of breach was the date of the termination letter.
We believe there are important policy considerations as well. The 30 day payment period was intended to protect the insured from dilatory payment practices of insurers. If actual breach is a prerequisite to a cause of action then the unintended result may be that some insurance companies will cancel benefit payments to their PIP insured and only resume making payments to those who questioned the denial.
Accordingly, we reverse the trial court’s order of final summary judgment in favor of Appellee and remand this case for further proceedings on Appellant’s claim for attorney’s fees. As to the cross appeal, we affirm the trial court’s denial of Appellee’s motion for attorney’s fees under 57.105. (SWIGERT, W., HILL, M., concur.)
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