7 Fla. L. Weekly Supp. 240a
Insurance — Personal injury protection — Attorney’s fees — Insurer has thirty days after being furnished written notice of fact of a covered loss and amount of the loss to make payment — Suit filed by third party against PIP insurer was premature where filed prior to expiration of thirty-day period and did not state cause of action because payment of benefits was not yet overdue — Error to award attorney’s fees and expert’s fees to plaintiff — Record does not support conclusion that filing of suit was catalyst for payments
FORTUNE INSURANCE COMPANY, Appellant, v. LEDDA ISAZA, individually and as guardian of OSCAR JARAMILLO, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 99-100 AP. Opinion filed January 19, 2000. An Appeal from County Court for Dade County, Nancy J. Pollock, Judge. Counsel: Diane H. Tutt, for Appellant. Dora L. Beatty and David B. Pakula, for Appellee.
(Before Juan Ramirez, Jr., Bernard S. Shapiro, and Alan Postman, JJ.)
(RAMIREZ, J.) This is an appeal from a final judgment awarding attorney’s fees and expert’s fees in favor of appellee pursuant to Florida’s personal injury protection statute. We reverse.
This is one of two cases filed against the insurer, Fortune Insurance Company, by the plaintiff, Ledda Isaza, on behalf of her two sons, Oscar and Steve Jaramillo, in connection with an accident that occurred on June 30, 1995. The two brothers were pedestrians who were struck and injured by an automobile owned and operated by Adolfo Milton Iglesias. They received extensive treatment at Jackson Memorial Hospital and follow-up treatment at Lord Medical Center. Oscar’s bills totaled $10,367.62 at Jackson and $1,640.00 at Lord Medical Center.
Ms. Isaza did not own an automobile and had no insurance. Both brothers were entitled to Medicaid benefits. Their bills were paid by Medicaid, thus giving rise to an automatic lien against any third-party benefits.
On November 3, 1995, plaintiff’s prior counsel sent a letter advising the defendant of the accident. Fortune Insurance insured the Iglesias vehicle. The adjuster requested insurance information. Despite repeated correspondence, counsel never provided a completed PIP application.
In February, 1998, Isaza filed suit on behalf of Steve seeking recovery of PIP benefits. Fortune again requested completed PIP applications and other documents. On March 19, 1998, defendant received completed PIP applications for both Oscar and Steve. The next day, defendant received medical authorizations and Isaza’s affidavit of non-ownership of a motor vehicle. On March 27, 1998, Fortune was able to confirm coverage under the policy for both the medical bills for both brothers. However, it erroneously interpreted their payment obligation to be 100% of medical bills, as opposed to 80%, with a policy limit of $10,000.00. Fortune thus concluded that satisfaction of the Jackson Memorial Hospital medical bill exhausted the $10,000.00 policy limit and denied payment of the $1,640.00 Lord Medical Center bills. It wrote that it could “make no payment for Lord Medical’s billing at this time.” (e.s.). Ms. Isaza filed suit the same day.
On April 15, 1998, within thirty (30) days of Fortune’s receipt of the PIP application and other documentation, it paid all the benefits due and owing, including satisfaction of the Jackson Memorial Hospital Medicaid lien and Lord Medical Center’s medical bills. Ms. Isaza then moved for entitlement of attorney’s fees and on February 26, 1999, the Court entered final judgment in her favor for $11,783.00, awarding $10,850.00 in fees, $183.00 in costs and $750.00 as an expert witness fee.
Section 627.736(4)(b) provides as follows: “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.” Clearly, a payment is not overdue if paid within 30 days. That was what occurred here.
The Third District Court of Appeal has explained that in order for a claimant to be entitled to fees, the failure to pay the claim must rise to the level of being wrongfully rejected. Allstate Ins. Co. v. Ivey, 728 So.2d 282, 283 (Fla. 3d DCA 1999); Obando v. Fortune Ins. Co., 563 So.2d 116, 117 (Fla. 3d DCA 1990) (“until such time as benefits were wrongfully withheld, the insured’s attorney was in no better position than the insured himself to claim a denial of coverage and the right to any applicable attorney’s fees.”). An insurer has thirty days after being furnished written notice of the fact of a covered loss and of the amount of the loss to make payment. Ledesma v. Bankers Ins. Co., 573 So.2d 1042, 1043 (Fla. 3d DCA 1991).
The trial court awarded fees even though the plaintiff filed suit prematurely because “the filing of the lawsuit. . .was the catalyst for payments.” First, there is no support in the record for this conclusion. But more importantly, the insurer has a statutory right to its 30 days. Payment is not “overdue” under the statute until after 30 days have expired. This is a condition precedent and a complaint that does not allege that the payment is overdue does not state a cause of action.
REVERSED and REMANDED. (SHAPIRO, BERNARD S. and POSTMAN, JJ., concur).
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