PROG. EXPRESS INS. V. MENENDEZ & MENENDEZ

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State: Florida

Court: Florida Third District Court

Docket No: 06-2570

Case Date: 03/19/2008

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2008
Opinion filed March 19, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-2570 Lower Tribunal No. 02-1381 ________________

Progressive Express Insurance Co., Inc.,
Appellant, vs.

Louis R. Menendez, Jr. and Cathy Menendez,
Appellees. An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge. Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein and Douglas H. Stein and Stephanie Martinez, for appellant. Tilghman & Vieth, P.A. and Robert C. Tilghman, for appellees.

ON MOTION FOR REHEARING AND CLARIFICATION

Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.

ROTHENBERG, J.

Based on the appellee's motion for rehearing, rehearing en banc, or certification, and clarification, we withdraw this Court's previous opinion dated December 5, 2007, and issue this opinion in its stead. The defendant, Progressive Express Insurance Co., Inc. ("Progressive"), appeals from a stipulated final judgment entered in favor of the plaintiffs, Louis R. Menendez, Jr. and Cathy Menendez (collectively, "the plaintiffs"), after the trial court issued an order granting the plaintiffs' motion for summary judgment as to liability. We reverse. Procedural History On June 14, 2001, Cathy Menendez ("Menendez") was injured in an automobile accident while traveling to work. Menendez was covered by a policy issued by Progressive affording personal injury protection ("PIP") benefits with effective dates of April 1, 2001, to October 1, 2001. In addition, Menendez was eligible for workers' compensation benefits, and her employer paid for nine weeks of her lost income. While most of Menendez's medical bills were paid through workers' compensation, Progressive paid a total of $2,131.22 to four different medical care providers. The plaintiffs have settled their claims against the insurer of the other motorist involved in the accident; paid $2000 from that settlement to satisfy a lien filed by Menendez's employer; and in December 2001, began to pursue a PIP

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benefits claim on behalf of Menendez. On February 4, 2002, counsel for the plaintiffs sent the first of a series of letters to Progressive, pressing the plaintiffs' claim for lost supplemental income and adding a claim for reimbursement of the $2000 paid to Menendez's employer. Progressive issued two written responses requesting additional documentation. The parties did not resolve the issues

surrounding the PIP claims, and on November 26, 2002, the plaintiffs filed suit for overdue benefits. When Progressive answered the complaint, it asserted that the plaintiffs had failed to comply with all conditions precedent to filing their lawsuit. Both parties subsequently filed motions for summary judgment. Progressive argued that the plaintiffs lacked standing to sue because they failed to provide Progressive with a presuit demand letter in compliance with subsection 627.736(11), Florida Statutes (2001). 1 The trial court denied Progressive's motion and granted the plaintiffs' motion for partial summary judgment, finding that the presuit notice requirement of subsection 627.736(11) did not apply to any part of Menendez's PIP claim, and that even if subsection 627.736(11) did apply, she was not required to serve a presuit written demand because "Progressive effectively denied Menendez's claim." Legal Analysis On November 21, 2003, after the commencement of litigation, the plaintiffs sent a complying demand letter to Progressive. 3
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The presuit notice requirement relied upon by Progressive is contained in subsection 627.736(11), Florida Statutes (2001). Subsection 627.736(11) provides that as a condition precedent to filing a claim for overdue PIP benefits, the insured must provide the insurer with written notice of the intent to initiate litigation. (11) DEMAND LETTER.-(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that, except with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated, such notice is not required for an overdue claim that the insurer has denied or reduced, nor is such notice required if the insurer has been provided documentation or information at the insurer's request pursuant to subsection (6). Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).

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