7 Fla. L. Weekly Supp. 543a
Insurance — Personal injury protection — Delay in payment of benefits — Interest — Based on plain meaning and intent of Section 627.736(4), insurer is required to pay interest on all payments made more than thirty days after bills were submitted — Waiver of interest — Any waiver of interest insurer obtained from medical provider is nullity since medical provider has no legal standing to waive benefit — Only person with authority to waive payment of interest would be insured, since statute clearly states that benefits paid pursuant to statute are for benefit of insured
ODALYS ALVAREZ, Plaintiff, vs. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 98-4696 CC 20. April 6, 2000. Henry Leyte-Vidal, Judge. Counsel: Mike Long, Hialeah. David Sostchin, Hialeah.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before this court on April 4, 2000, at 9:30 a.m., upon Plaintiff’s Motion for Summary Judgment and having heard argument of counsel, reviewed the file including the deposition testimony filed by both parties, reviewed the file and the case law presented and being otherwise duly apprised in the premises, the court hereby finds as follows:
1. On or about February 28, 1998 the Plaintiff, Odalys Alvarez was involved in an automobile accident in Miami-Dade County, Florida while she was insured by the Defendant, Ocean Harbor Casualty Insurance Company.
2. The Plaintiff, Odalys Alvarez put the Defendant, Ocean Harbor Casualty Insurance Company on notice of her intent to make a claim pursuant to the personal injury protection portion of the policy, completed a PIP application and forwarded the completed application to the Defendant, Ocean Harbor Casualty Insurance Company.
3. Twenty-three different billings from several providers were received by the Defendant and only one of those bills was paid within thirty days of the Defendant having received the bill. On one occasion the Defendant obtained a signed waiver of interest from one of the providers with regard to that one bill. On the remaining twenty-one billings the Defendant neither paid the interest within thirty days from the date of receipt of the billing nor did it obtain a signed written waiver.
4. The Defendant argues in opposition to the Motion for Summary Judgment that they obtained verbal waivers of interest from the different providers with regard to the remaining medical bills and that whether or not a proper waiver was obtained from the provider is an issue of fact to be determined by the jury and that the Motion for Summary Judgment should be denied.
5. The Defendant, Ocean Harbor Casualty Insurance Company admits that only one of the billings was paid within the thirty day period and acknowledges in the deposition of Joseph Celli the Representative of Ocean Harbor Casualty Insurance Company that was designated as the person with most knowledge with regard to this claim that their position on this matter is that although the payments were made in excess of thirty days from having received the bills that waivers of interest were received either in writing or verbally from the medical providers.
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is granted.
F.S.A. Section 627.736(4)(b) states as follows:
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within thirty days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amounts supported by written notice is overdue if not paid within thirty days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within thirty days after such written notice is furnished to the insurer. However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery.
Florida Statute Section 627.736(4)(c) states as follows:
All overdue payments shall bear simple interest at the rate of 10 percent per year.
F.S.A. 627.736(4) states clearly on its face that the benefits to be paid pursuant to this section are for the benefit of the insured. In this case Plaintiff’s counsel seems to have accepted that with regard to one billing that no interest is due because a written waiver of interest was obtained from the medical provider. If the benefit pursuant to the statute is for the insured, to wit: Odalys Alvarez, then the only person with the authority to waive the payment of interest would be the insured, Odalys Alvarez. Any waiver of interest by the medical providers is a nullity since the medical provider has no legal standing to waive the benefit.
The courts have repeatedly held that the plain meaning and intent of the statute requiring payment of personal injury protection benefits within thirty days of written notice is to guarantee swift payment of the PIP benefits, Crooks v. State Farm Mutual Automobile Insurance Company, 659 So.2d 1266 (Fla. 3d DCA 1995), Fortune Insurance Company v. Pacheco, 695 So.2d 394 (Fla. 3d DCA 1997) and Martinez v. Fortune Insurance Company, 684 So.2d 201 (Fla. 4th DCA 1997).
The Fourth District noted in the case of Martinez v. Fortune Insurance Company that the First District reviewed this same statutory language in 1974 in the case of Dunmore v. Interstate Fire Insurance Company, 301 So.2d 502 (Fla. 1st DCA 1974). The court in Martinez recognized that the legislature had amended section 627.736 twenty-five times since the opinion in Dunmore was released up to the time that the Martinez court made their decision in 1997. Ten of those amendments involved changes to the very subsection at issue in this case. In all of the amendments made the legislature never changed or clarified the clauses construed in Dunmore and at issue here. Based on the plain meaning and intent of the statute which has been reviewed on numerous occasions by both the legislature and the courts this court finds that the Defendant, Ocean Harbor Casualty Insurance Company is required by F.S.A. 627.736(4)(b)(c) to pay interest on all payments made more than thirty days after the bills were submitted.
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