8 Fla. L. Weekly Supp. 737a
Insurance — Personal injury protection — Limitation of actions — Statute of limitations did not begin to run on date insurer provided notice that it would no longer pay PIP benefits since plaintiff had no medical expenses unpaid by insurer on that date — As each new date of medical service after insurer’s notice resulted in plaintiff incurring additional expenses, another five-year limitations period commenced for that date of service — Motion for summary judgment granted as to expenses incurred on date of service more than five years prior to filing of suit and denied as to expenses incurred on dates of service less than five years prior to filing of suit
STEVEN O. GAETA DC D/B/A CLINICARE SPINAL HEALTH CENTERS OF SARASOTA, (C. Armstrong), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2001-CC-593-NC. August 13, 2001. Barbara B. Briggs, Judge. Counsel: Roberts J. Bradford, Jr., Marks & Fleischer, P.A., Ft. Lauderdale. P.D. Sabourin Goldstein, St. Petersburg.
ORDER GRANTING IN PART AND DENYING IN PARTDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard before the court on Defendant’s Motion for Summary Judgment and the Court having heard the argument of counsel and being otherwise fully advised in the premises, the Court finds as follows.Facts
On May 1, 1995, Cheryl Armstrong was injured in a motor vehicle accident. At that time Cheryl Armstrong was covered by a policy of insurance issued by Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, which provided for, inter alia, Personal Injury Protection and Medical Payment benefits. Cheryl Armstrong sought chiropractic treatment from Plaintiff, DR. STEVEN GAETA, for those injuries. Cheryl Armstrong assigned her No-Fault benefits to Plaintiff.
Defendant paid No-Fault benefits to Plaintiff for the treatment rendered to Cheryl Armstrong through December 27, 1995. By letter dated January 3, 1996, Defendant informed Plaintiff that, based on the results of a compulsory medical examination, it would no longer pay No-Fault benefits for, inter alia, chiropractic treatment.
Cheryl Armstrong continued to receive chiropractic treatment from Plaintiff and, under the assignment of benefits, Plaintiff incurred additional chiropractic expenses on January 8, January 29, January 31, February 5, March 1, March 22, June 7, June 12, June 17, July 1, July 12, July 22, July 26, August 9, and August 14, all in 1996.
Plaintiff filed suit against Defendant for unpaid No-Fault benefits on January 12, 2001.Law
Defendant, relying on Peachtree Casualty Insurance Company v. Walden, 759 So.2d 7 (Fla. 5th DCA 2000), contends that the five year statute of limitations began to run on January 3, 1996, the date Defendant notified Plaintiff it would no longer pay benefits. Defendant argues that the January 3, 1996 letter constituted an unconditional repudiation and anticipatory breach of the contract of insurance which triggered the running of the statute of limitations. Defendant’s reliance on Peachtree is misplaced under the facts of the case sub judice.
Peachtree merely stands for the limited proposition that where an insurer has notified an insured that it no longer considers medical treatment necessary and does not intend to honor future claims, it is unnecessary, under section 627.736(4)(b), Florida Statutes, for an insured to wait thirty days from the date a claim is submitted before filing a breach of contract action as to accrued claims.
Rader v. Allstate Insurance Company, 26 Fla.L.Weekly D1430, 1431 (Fla. 4th DCA 2001).
A cause of action accrues when the last element necessary to constitute a cause of action occurs. See, e.g., Birnholz v. Blake, 399 So.2d 375 (Fla. 3d DCA 1981). Stated differently, a cause of action cannot be said to have accrued for statute of limitations purposes until an action can be instituted thereon. See, e.g., Berger v. Jackson, 156 Fla. 768, 23 So.2d 265 (1945); and, Drake By and Through Fletcher v. Island Community Church, Inc., 462 So.2d 1142 (Fla. 3d DCA 1984).
As the Fourth District Court stated in Rader:
The alleged anticipatory breach did not relieve the Plaintiff of the necessity of incurring and alleging damages in order to state a cause of action for breach of contract. [ ] Further, a plaintiff cannot obtain a judgment for insurance benefits which have not yet accrued.
Rader, at 1431 (citations omitted). See also: Airport Sign Corp. v. Dade County, 400 So.2d 828, 829 (Fla. 3d DCA 1981) (“Until damages are incurred, a party cannot state a cause of action and the statute of limitations does not begin to run.” ) The Peachtree Court expressly noted that “Peachtree’s notice gave rise to a cause of action for breach of contract with respect to the claims that accrued by the time of litigation.” Peachtree, at 8 (emphasis added).
On January 3, 1996, Plaintiff had no expenses for chiropractic treatment which were unpaid by Defendant. Had Plaintiff filed suit on January 3, 1996, the suit would have been dismissed for want of a cause of action. The next date of service after January 3, 1996 was January 8, 1996. On this date treatment expenses were incurred in the amount of $105.00, thereby triggering the statute of limitations for the expenses incurred on that date. The limitations period for expenses incurred on this date expired on January 8, 2001. As Plaintiff filed suit on January 12, 2001, the claim for benefits related to this date of service is extinguished by the statute of limitations.
As each new date of service beyond January 3, 1996 resulted in the Plaintiff incurring additional expenses, another five year limitations period commenced for that date of service. See, generally: Roth v. State Farm Mutual Automobile Insurance Company, 581 So.2d 981 (Fla. 2d DCA 1991) (“[We] hold that the statute of limitations began to run on each claim when the [plaintiffs] first received written notification that that specific claim was denied”).
The next date of service beyond January 8, 1996 was January 29, 1996. The limitations period for this date of service expired on January 29, 2001. Plaintiff, therefore, timely filed suit regarding the expenses incurred during the January 29, 1996 date of service and during all dates of service beyond January 29, 1996.
It is, therefore, ORDERED AND ADJUDGED that
1. The Motion is hereby GRANTED in Part and DENIED in Part.
2. The Motion is Granted as to the expenses incurred during the January 8, 1996 date of service and Defendant shall go hence without day thereon.
3. The Motion is Denied as to the expenses incurred January 29, 1996 through August 14, 1996.
* * *
