15 Fla. L. Weekly Supp. 1150a
Insurance — Personal injury protection — Demand letter — Statute requiring presuit demand letter applies to insured who received treatment prior to effective date of statute — Substantially compliant demand letter was sent to insurer, and it had implied actual notice of insured’s suit from statement in letter that it was presuit demand letter pursuant to section 627.736(11) — Because first presuit demand letter was substantially compliant, amended complaint filed on same day as amended presuit demand letter was proper, and refiling of entire action was not required
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. FERNANDO SARRIA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-320 AP. L.T. Case No. 03-9731 SP 25. October 23, 2008. On appeal from a decision by the County Court in and for Miami-Dade County. Counsel: Michael J. Neimand, for Appellant. G. Bart Billbrough and Fernando Freire, for Appellee.
(Before JERALD BAGLEY, JOHN SCHLESINGER, and BEATRICE BUTCHKO, JJ.)
(PER CURIAM.)
Standard of Review
The standard of review for an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
I. Facts
Appellee/Plaintiff Fernando Sarria purchased a personal injury protection (PIP) automobile insurance policy from Appellant/Defendant United Automobile Insurance Co. on February 8, 2003. The policy provided benefits for the coverage period commencing February 28, 2003 through February 28, 2004. On May 5, 2003 the Plaintiff was involved in an automobile accident. The Plaintiff submitted medical bills to the Defendant that he incurred for treatments from May 7, 2003 to June 23, 2003 which arose from that automobile accident. Defendant did not pay these bills.
Plaintiff submitted a pre-suit demand letter/notice on July 31, 2003 to Defendant pursuant to section 627.736(11), Florida Statutes (2001). Although this letter stated it was a “PRE-SUIT DEMAND LETTER PURSUANT TO F.S. 627.736(11)” and mailed to Defendant’s correct address, it was addressed to the incorrect person within the company (Charles Grimsley instead of Sandra Iglesias). On August 15, 2003, Plaintiff submitted his Complaint and alleged that he had “performed all conditions precedent to entitle his recovery under the policy but Defendant has refused and continues to refuse to pay Plaintiff for his losses.” Defendant moved to dismiss the Complaint for failure to state a cause of action because it was “wholly bereft of any allegations that the medical expenses that are the subject of the claim are reasonable, related and a necessary, and therefore must be dismissed.” The motion to dismiss did not contain any allegations that Plaintiff had not complied with pre-suit notice requirements.
After the motion to dismiss was denied, Defendant filed its answer and affirmative defenses. Defendant filed a general denial of Plaintiff’s allegations of compliance with conditions precedent, and included affirmative defenses that the claim was fraudulent, there were material misrepresentations in plaintiff’s insurance policy, and he did not have standing to bring his lawsuit because he had allegedly given an assignment to his medical provider. There was no mention of pre-suit notice in Defendant’s answer.
On February 11, 2004 Defendant moved for summary judgment. In its summary judgment motion, Defendant asserted that Plaintiff had failed to meet the condition precedent for the lawsuit because he failed to submit a pre-suit demand letter in compliance with section 627.736(11), Florida Statutes (2003). Plaintiff submitted a compliant pre-suit demand letter to Defendants that same day, and also moved to amend his complaint. The motion was granted. The amended complaint specifically alleged that there was compliance with section 627.736(11), Florida Statutes. On March 8, 2004, Defendant submitted its amended answer and affirmative defenses. Specifically, for its third affirmative defense, Defendant stated that Plaintiff had not met all conditions precedent prior to the filing of the lawsuit since he did not furnish Defendant with statutory notice pursuant to section 627.736(11), Florida Statutes (2003).
II. Section 627.736(11), Florida Statutes (2003)
Section 627.736(11), Florida Statutes (2003) is the amended pre-suit demand letter statutory section.1 It was decided in Progressive Express Insurance Co., Inc. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) that section 627.736(11), Florida Statutes (2003) “is procedural in nature, and it does not alter any contractual or vested rights of the plaintiffs . . . .” Id. at 331. The section is to be applied retrospectively. Id. at 330-31.2
Plaintiff attempts to distinguish Menendez from the instant case. In Menendez, the plaintiff received his treatment after the effective date of the statute, whereby the plaintiff in this case received his treatment prior to the effective date. This fact will not alter the pronouncement the Third District Court of Appeals made; that the statutory section is procedural and retrospective in nature, since it does not change any contractual or vested rights held by a plaintiff. The trial court below incorrectly ruled that the pre-suit notice provision of 2001 should apply, and not the newer, amended 2003 version.
Those rights that are considered procedural rights are discussed in Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So. 2d 610, 612-13 (Fla. 5th DCA 2000):
Procedural statutes are those which govern practice and procedure. See Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (stating that “practice and procedure ‘encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.’ ”) (quoting In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla. 1972) (Adkins, J., concurring)); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975); State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969) (observing that “procedural law has been described as the legal machinery by which substantive law is made effective”). Procedural laws generally operate retrospectively. See Fallschase Dev. Corp. v. Blakey, 696 So. 2d 833, 836 (Fla. 1st DCA 1997) (noting that procedural statutes “operate retrospectively ‘in the sense that all pending proceedings, including matters on appeal, are determined under the law in effect at the time of the decision . . . .’ ”) (quoting Fogg v. Southeast Bank, N.A., 473 So. 2d 1352, 1353 (Fla. 4th DCA 1985)). Substantive laws, on the other hand, are those laws which prescribe “duties and rights.” See Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citing Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975)). Substantive laws are presumed to operate prospectively “unless the Legislature clearly expresses its intent that the statute is to operate retrospectively. This is especially true when retrospective operation of a law would impair or destroy existing rights.” Id. (citing State v. Lavazzoli, 434 So. 2d 321, 323 (Fla. 1983)); see also Zack v. State, 753So. 2d 9 (Fla. 2000).
(Emphasis added).
The steps by which a party files suit in a PIP action against an insurer is procedural in nature. The 2003 amendment affected how a party files suit, initiated by the pre-suit demand letter. This activity is covered by the statute’s amendment, and this part of the amendment is applied retrospectively. See Kerr Constr., 767 So. 2d at 612-13. The trial court erred when it ruled that the 2003 amendment to section 627.736(11), Florida Statutes was inapplicable. Plaintiff/Appellee argues extensively and unsuccessfully that the change was substantive and prospective. Menendez refutes his arguments.
III. Strict Compliance with the Pre-Suit Demand Letter
Statutes are to be read by a court as such:
as a general rule this Court must give effect to the plain and unambiguous language of a statute. However, it is equally clear that a literal interpretation is not required when such an interpretation would lead to an unreasonable or ridiculous conclusion and there are cogent reasons to believe the letter of the law does not accurately reflect the legislative intent. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
Patry v. Capps, 633 So. 2d 9, 11 (Fla. 1994).
The Patry Court looks at the purpose of the legislation to determine whether strict compliance with the statute is essential to its legislative goal. Id. at11-12. It describes the legislative goal of the pre-suit notice and screening requirements found in the medical malpractice statutes (section 768, et seq., Florida Statutes) as the “promot[ion of] the settlement of meritorious claims early in the controversy in order to avoid full adversarial proceedings.” Id.
The goal of the pre-suit demand letter provision in the PIP legislation is the same as that of the medical malpractice notice legislation. “Litigation costs could be reduced due to the provisions in the bill which broaden the application of the presuit demand letter to cover all PIP disputes and which gives insurers more time to respond to demand letters. Parties could settle many PIP disputes rather than file lawsuits, thus reducing the amount of court costs and attorney’s fees.” Staff Analysis, Senate Bill 32-A (2003A), V. B. Economic Impact and Fiscal Note: Private Sector Impact. See also Physical Therapy Group, LLC v. Mercury Ins. Co., 13 Fla. L. Weekly Supp. 889c (Fla. Miami-Dade Cty. Ct. June 2, 2006) (same); Universal Health Care Ctr. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 932b (Fla. Broward Cty. Ct. July 14, 2004) (same).
Patry announces that strict compliance with the medical malpractice claim statute “is in no way essential” to its legislative goal. Patry, 633 So. 2d at 12. Since the goals are the same for the medical malpractice claim statute and the pre-suit demand letter/notice requirement found in the PIP statute, it follows that strict compliance is not required for that statute either. See also USA Roofing Supply, Inc. v. Farmer, 5 Fla. L. Weekly Supp. 726a (Fla. Polk Cty. July 20, 1998) (although the mechanic’s lien law is a statutory creation and “must be strictly construed, substantial compliance with the notice to owner provision is sufficient to maintain a valid mechanic’s lien. . . . Substantial Compliance may be shown by implied actual notice. Implied actual notice, being an inference of fact, may be drawn by the court as a matter of law when warranted by the circumstances of the particular case calling for its application in order to grant equitable relief. . . . Implied actual notice is inferred from the fact that the person had the means of knowledge, which it was his duty to use and which he did not use.”) (Citations omitted). Under the circumstances of this case, it is found, as a matter of law, that a substantially compliant demand letter was sent to the Defendant and it had implied actual notice of Plaintiff’s suit by the letter’s address which stated it was a “PRE-SUIT DEMAND LETTER PURSUANT TO F.S. 627.736(11).”
IV. Amendment to the Complaint
In Ingersol v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991), the Court noted that the plaintiff filed an amended complaint which alleged that he had complied with the conditions precedent to filing a lawsuit under the medical malpractice statute. Thus, an amended complaint is an avenue available to a plaintiff to cure pre-suit compliance statutes (a malpractice suit was filed against two brothers who were dentists that worked in the same practice. Plaintiff dismissed one of the brothers from the suit, but the pre-suit notice demand letter was only addressed to the brother who was dismissed. An amended pre-suit demand letter was never submitted.) The Ingersol Court was not preoccupied with whether plaintiff sent an amended demand letter to the correct party, it simply stated that the defendant had waived the issue of pre-suit notice requirements by submitting a general denial to the amended complaint. Id.
In Simon v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 347a (Fla. Palm Beach Cty. Ct. Feb. 5, 2004), the Court noted that an amended pre-suit demand letter was sent to the defendant under the PIP statutes; however, the plaintiff did not file an amended complaint. The Court closed that particular case without prejudice, but without leave to amend.
Apparently, an amended pre-suit notice letter must be followed by an amended complaint that alleges compliance with the pre-suit notice statutes. Under Hospital Corp. of America v. Lindberg, 571 So. 2d 446, 447 (Fla. 1990), the Florida Supreme Court provided that in order to state a cause of action, a plaintiff must submit a complaint with allegations that the pre-suit notice requirements (of the medical malpractice statute) have been met. A plaintiff cannot have an amended pre-suit notice letter without a subsequently filed amended complaint. The lack of allegations of statutory pre-suit notice compliance results in the failure of a complaint, or an amended complaint, to invoke the jurisdiction of the court. Id. (“[t]he civil jurisdiction of a trial court, therefore, is invoked by the filing of a well-pled complaint which states a cause of action within the subject matter jurisdiction of that court.”). Lindberg also holds that “if a pre-suit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend.” Id. at 449.
Plaintiff submitted an amended pre-suit notice letter and an amended complaint on the same day, February 11, 2004. Normally, this would cause the court to dismiss the case with leave to amend, so a second amended complaint could be filed which asserts that the pre-suit notice has been complied with. However, as already noted, the first pre-suit notice demand letter that was filed by the Plaintiff on July 31, 2003 was substantially compliant with the pre-suit notice statute; thus, the amended complaint in the instant case is proper, allowed, and does not necessitate a refiling of the entire action.
V. The Tipsy Coachman Doctrine and its Application to the Instant Case
The “tipsy coachman” doctrine allows an appellate court to affirm a trial court that reaches the right result, but for the wrong reason so long as there is any basis which would support the judgment in the record. Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999)).
The trial court decided incorrectly concerning the retrospective application of the changes to the PIP pre-suit demand letter/notice requirement statute. However, it correctly decided that an amended complaint could be filed, and that the first demand letter that was submitted was sufficient to support the amended complaint because it was substantially compliant with section 627.736(11), Florida Statutes (2003).
Although the issue of a waiver or an estoppel could be pertinent to the instant case concerning Appellant’s failure to timely raise the notice issue, it is not dispositive concerning our decision.
The trial court’s summary judgment decision is hereby affirmed. Under the “tipsy-coachman” doctrine, although the trial court decided incorrectly concerning the retroactivity of section 627.736(11), it decided correctly that the July 31, 2003 pre-suit demand letter was legally acceptable, since it was substantially compliant with the statute.
Moreover, the trial court decided correctly that the Plaintiff could file an amended demand letter along with an amended complaint.
AFFIRMED.
Appellee’s motion for attorney’s fees is granted.
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1(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).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed Health Care Finance Administration 1500 form, UB 92, or successor forms approved by the Secretary of the United States Department of Health and Human Services may be used as the itemized statement.
(c) Each notice required by this section must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if so requested by the provider in the notice, when the insurer pays the overdue claim. Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this section, on the document denying or reducing the amount asserted by the filer to be overdue. Each licensed insurer, whether domestic, foreign, or alien, may file with the department designation of the name and address of the person to whom notices pursuant to this section shall be sent when such document does not specify the name and address to whom the notices under this section are to be sent or when there is no such document. The name and address on file with the department pursuant to s. 624.422 shall be deemed the authorized representative to accept notice pursuant to this section in the event no other designation has been made. (Emphasis added).
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2It should be noted that subsection (c) has been further amended to indicate that the correct person to whom a pre-suit demand letter should be sent will be set forth on the insurer’s internet site.
Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation of the name and address of the person to whom notices pursuant to this subsection shall be sent which the office shall make available on its Internet website.