SC08-789 – Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In.

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Supreme Court » 2010 » SC08-789 – Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In.

State: Florida

Court: Supreme Court

Docket No: SC08-789

Case Date: 04/22/2010

Preview:Supreme Court of Florida
____________ No. SC08-789 ____________ LOUIS R. MENENDEZ, JR., et al., Petitioners, vs. PROGRESSIVE EXPRESS INSURANCE CO., INC., Respondent. [April 22, 2010] REVISED OPINION PARIENTE, J. This case arose from the failure of Progressive Express Insurance Company (Progressive) to pay personal injury protection (PIP) benefits to its insured, Cathy Menendez, after she was injured in an automobile accident in June 2001. Because Progressive did not pay the benefits, the insured sued for overdue benefits. She was successful in her claim in the trial court, which eventually entered a judgment in her favor. On appeal, the Third District Court of Appeal reversed the judgment on multiple grounds, including the insured's failure to comply with a statute enacted after the date of the automobile accident (referred to as the statutory

presuit provision)1 that placed additional requirements on an injured person seeking to recover PIP benefits before filing suit. See Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008). In holding that the statutory presuit notice provision could be applied retroactively to the insured's claim because it was "merely procedural" and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez. 1. The statutory requirements originally contained in section 627.736(11), Florida Statutes (2001), are now located in section 627.736(10), Florida Statutes (2009). Section 627.736(11) was renumbered as subsection (10) by chapter 2007324, section 20, Laws of Florida, which became effective January 1, 2008. To avoid any confusion, we refer in this opinion to the text of section 627.736(11), as originally enacted in 2001, as the "statutory presuit notice provision."

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FACTS AND PROCEDURAL HISTORY As set forth in the district court opinion: 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. Menendez, 979 So. 2d at 327. After having settled the claims arising out of the automobile accident with the other motorist, Menendez paid $2,000 from that settlement to satisfy a lien filed by Menendez's employer. In December 2001, her attorney began to pursue a PIP benefits claim on behalf of Menendez. After a series of letters to and from Progressive, almost a year later on November 26, 2002, Menendez and her husband2 (hereinafter referred to as the insureds) filed suit against Progressive for overdue benefits. The litigation in the trial court, which spanned a period of several years, eventually focused not on whether Progressive owed the benefits, but on whether the statutory presuit notice was required. The trial court ultimately concluded that

2. Menendez's husband, Louis R. Menendez, Jr., was the named insured on the insurance policy. Cathy Menendez was the second named insured.

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the statute was not applicable to the insureds' claim. Further, the court ruled that even if the statute applied, presuit notice was not required because "Progressive effectively denied [Petitioners'] claim." Id. at 327. A partial summary judgment was granted in favor of the insureds and a stipulated final judgment was entered in the full amount due and owing to the insureds. Progressive appealed the summary judgment ruling to the Third District Court of Appeal. The issues on appeal also revolved around the statutory presuit notice requirement. The Third District found against the insureds on each issue raised. Specifically pertinent to the primary issue in this case, the Third District rejected the insureds' assertion that the presuit notice requirements of the statute impaired the obligation of contracts in violation of article I, section 10, of the Florida Constitution. Menendez, 979 So. 2d at 330-31.3 Accordingly, the Third District reversed the summary judgment entered in favor of the insureds, leaving as the only issue to be litigated whether Progressive's letters constituted a denial of

3. As to the other issues on appeal, the Third District held: (1) that the trial court erred in granting the partial summary judgment because a material disputed issue of fact existed as to whether Progressive denied the insureds' claim; (2) that section 627.736(11) applied to all types of PIP benefit claims, including lost supplemental wages claims; and (3) that the insureds waived any argument on appeal that the claim for benefits could have been abated until the failure to comply with the notice provision was cured because they failed to request abatement or to voluntarily dismiss and refile their complaint. Menendez, 979 So. 2d at 328-34. In light of our holding, we do not address these additional claims. -4-

the claim, which would obviate the need to comply with the presuit notice provisions. See

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