6 Fla. L. Weekly Supp. 443b
Insurance — Personal injury protection — Statute allows for 10% interest per year on overdue benefits — Insured entitled to additional 12% interest on settlement proceeds where insurer did not tender settlement amounts within 20 days of written settlement
WILLIAM Z. MUSHUNSKI AND STEPHANIA MUSHINSKI, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court of the 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 97-1625CC-11-ECT. April 13, 1999. Eugene C. Turner, Judge.
ORDER ON PLAINTIFF’S MOTION TO COMPEL SETTLEMENT AND TO TAX ADDITIONAL INTEREST AND PENALTY INTEREST
THIS CAUSE came on before the Court on Plaintiff’s Motion to Compel Settlement and to Tax Additional Interest and Penalty Interest. The Court having heard argument of counsel and being otherwise fully advised in the premise, it is hereby,
ORDERED AND ADJUDGED that:
This is a claim against Allstate for no-fault benefits. It is undisputed that Allstate agreed to make payment of disputed benefits and interest under F.S. 627.736(4). On August 28th, 1998, Plaintiff’s counsel faxed a summary of benefits due to Allstate’s counsel. The summary reflected total outstanding medical bills for Mrs. Mushinski in the amount of $2,447.59 ($2,198.55 in bills and $249.04 in interest), outstanding medical expenses of Mr. Mushinski in a total amount of $3,019.87 ($2,796.45 in bills and $223.47 in interest) and $678.60 in out-of-pocket expenses paid by Mr. Mushinski for medical treatment. That afternoon, Allstate faxed a response to Plaintiff’s counsel agreeing to settle the case by paying for the Mushinski’s medical treatment resulting from the accident and to either negotiate the amount of attorney fees and costs or set it before the Court for determination. As a result, the trial on the matter scheduled for the next week was canceled.
Twenty days after the settlement agreement, the Plaintiff’s counsel contacted Allstate’s counsel and made inquiry as to the payment for the benefits. Payment was not forthcoming. Additional inquiry was made by Plaintiff’s counsel, but payment was still not forthcoming. The matter of attorney fees was scheduled to be heard before the Court on October 26th, 1998. The week before, Allstate’s counsel forwarded a check for $2,447.59, a check for $3,019.87, a release and a joint stipulation for dismissal. The checks contained statements claiming “satisfaction of remaining PIP bills…”, the release contained language broad enough to include a release of future PIP benefits and the “stipulation” called for a dismissal of all claims including attorney fees and costs. No check for the $678.60 in out-of-pocket expenses was tendered. By letter dated October 26th, 1998, Plaintiff’s counsel returned the checks containing language of limitation. Reference was made to the fact that a release of future PIP benefits is against public policy. This position is supported by well established case law. See Union American Ins. Co. v. Lee, 625 So.2d 112 (Fla. 4th DCA 1993) (If broad language of a release was sufficient to include future benefits, it was contrary to public policy behind no-fault insurance law). The letter advised that if replacement checks without the limitation language could be provided without unnecessary delay, there would be no request that interest be calculated for the delay. Receiving no response, Plaintiff’s counsel filed a motion to compel settlement and tax additional interest and penalty interest on November 9th, 1998. The motion cites with particularity both F.S. §627.736 and F.S. §627.4265. As of the date of the hearing (143 days after Allstate’s written settlement and 123 days after penalty interest accrues under §627.4265), Allstate has still failed or refused to issue replacement checks.
First, the Court finds that Allstate’s settlement in writing was presented August 28th, 1998. If Allstate was expecting additional terms which would have included a release broad enough to include future benefits, certainly such a condition would have been expressed. More is this the case when such terms would violate public policy. Thus, the questions before the Court are reduced to entitlement to interest under the two statutes, and to establishing a date for entitlement of either or both statutes if they apply.
As to F.S. §627.736, the statute allows for 10% interest per year on overdue benefits. Allstate is undoubtedly aware of this requirement, in that calculations for settlement set forth on August 28th, 1998, expressly identified interest as benefits due. Since the benefits checks in question have yet to be properly tendered, the 10% interest must be calculated to the date of the hearing ($2,198.55 x 10% x 143 days = $85.50; $2,796.45 x 10% x 143 days = $110.11; $678.60 x 10% x 143 days = $27.17).
Next, as to Plaintiff’s claim pursuant to F.S. §627.4265, the Court finds that the plain meaning of the statute requires interest at 12% of settlement proceeds if the insurer doesn’t tender settlement amounts within twenty (20) days of the written settlement. More specifically, the statute states:
“In any case in which a person and an insurer have agreed in writing to the settlement of a claim, the insurer shall tender payment according to the terms of the agreement no later than twenty days after such a settlement is reached…[I]f the payment is not tendered within twenty days, or such other date as the agreement may provide, it shall bear interest at a rate of 12% per year from the date of the agreement.”
Written settlement in this case was August 28th, 1998. Allstate has, as of the date of hearing, failed or refused to tender an equivocal payment for medical benefits as agreed. The Court has reviewed Forste v. Armor Ins. Co., 4 F. Law Weekly Supp. 490(a) Case #MC-94-9662-RF, December 20th, 1996 Palm Beach County). This Court finds Judge Blanc’s reasoning to be persuasive. Accordingly, interest at 12% following the Defendant’s failure to tender benefits pursuant to written settlement agreement is awarded ($2,198.55 x 12% x 123 days = $88.36; $2,796.45 x 12% x 123 days = $113.16; $678.60 x 12% x 123 days – $27.06).
Based on the above, the Court finds and it is
ORDERED AND ADJUDGED that the Plaintiff shall recover the following sums:
A. A judgment in the principal amount of $2,247.59 as and for outstanding medical expenses on behalf of Mrs. Mushinski;
B. A judgment in the principal amount of $3,019.80 as and for outstanding medical expenses on behalf of Mr. Mushinski;
C. A judgment in the principal amount of $678.60 as and for out-of-pocket medical expenses paid by the Mushinski’s;
D. Interest is awarded to Plaintiff in the amount of $222.78 under F.S. §627.736(4)(c) and an additional $228.58 under F.S.§627.4265(1984).
For which let execution issue.
The Court retains jurisdiction for further enforcement of this order and attorney fees and costs.
* * *
