Fortune Ins. Co. v. Pacheco, 96-1039

• Decision Date: 30 April 1997
• Docket Number: No. 96-1039,96-1039
• Citation: 695 So.2d 394
• Parties: 22 Fla. L. Weekly D1076 FORTUNE INSURANCE COMPANY, Appellant, v. Ivan PACHECO, Appellee.
• Court: Florida District Court of Appeals

Page 394

695 So.2d 394

22 Fla. L. Weekly D1076

FORTUNE INSURANCE COMPANY, Appellant, v. Ivan PACHECO, Appellee.

No. 96-1039.

District Court of Appeal of Florida,

Third District.

April 30, 1997.

Diane H. Tutt, Plantation, for appellant.

Alfonso Salcines, Coral Gables; Robert S. Glazier, Miami, for appellee.

Ronald L. Kammer, Miami, for the Florida Defense Lawyers Association, Bankers Insurance Company, Integon Insurance Company, and Armor Insurance Company as amicus curiae.

Edward S. Schwartz, Miami, for the Academy of Florida Trial Lawyers as amicus curiae.

Before SCHWARTZ, C.J., and NESBITT, JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and SORONDO, JJ.

JORGENSON, Judge.

This cause is before us on a question certified by the Dade County Court as being one of great public importance. We agree that the issue is one of great public import and therefore have en banced this case to settle the law in this district; in so doing, we align ourselves with the First and Fourth districts.

The Dade County Court certified the following question:

WHETHER § 627.736(4)(B), FLA. STAT. REQUIRES A PIP [PERSONAL INJURY PROTECTION] INSURER TO PAY THE CLAIMED BENEFITS WITHIN THIRTY DAYS OF RECEIPT OF THE CLAIM OR WITHIN THIRTY DAYS OF RECEIPT OF MEDICAL VERIFICATION OF THE CLAIM.

We rephrase the question as follows:

CAN A PIP INSURER REQUIRE AN INSURED TO SUBMIT ALL SUPPORTING MEDICAL RECORDS BEFORE THE THIRTY (30)-DAY TIME PERIOD FOR PAYMENT OF THE CLAIM BEGINS TO RUN?

We answer the question, as rephrased, with a resounding "no," and, based upon twenty-two years of established law, affirm the final summary judgment entered for the insured, Ivan Pacheco.

Ivan Pacheco suffered injuries in an automobile accident. He notified Fortune of the accident and on January 25, 1995, he filed a claim letter; medical bills in the amount of $5,992.98; medical reports; a PIP form; and a copy of the police report. Fortune forwarded the records to a reviewing company, and, twenty-four days after Pacheco filed the request for payment, the reviewing company sent a letter to one of Pacheco's health care providers, requesting among other items, diagnostic testing results including graphs, x-rays, and all office notes. Fortune did not pay the claim until after the thirty-day deadline, and only after Pacheco had filed suit for his PIP benefits. When Pacheco moved for summary judgment on the basis that Fortune's failure to timely pay benefits required him to file a lawsuit and incur attorney's fees, Fortune argued that the terms of the policy required Pacheco to submit, with his claim for benefits, all supporting medical records. The policy reads as follows:

Reasonable proof of claim shall include but not be limited to: a) properly completed Florida Application for No-Fault Benefits; and b) accident report as specified in Chapter 316 of Florida Statutes; and c) all medical expenses incurred as a result of the accident and all supporting medical records. (Emphasis added.)

The trial court entered summary judgment for Pacheco; we affirm.

Section 627.736(4), Florida Statutes (1993), provides that PIP benefits "shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy." (Emphasis added.) The same statute provides that PIP benefits "shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same." The statute does not define "reasonable proof" of loss; Fortune chose to include its own definition of "reasonable proof" in its policy to include all supporting medical records. By so defining the term, Fortune sought to determine when the thirty-day period to pay the claim would begin to run, and thus circumvent long-established case law that once an insurer receives notice of a loss and medical expenses, it must pay within thirty days, unless, pursuant to section 627.736(4)(b), it has obtained reasonable proof to believe that it is not responsible for the payment.

Since 1974, Florida courts have uniformly held that

the statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application for benefits. There is no provision in the statute to toll this time limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted "no fault" insurance statute a "no-pay" plan--a result we are sure was not intended by the legislature.

Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502, 502 (Fla. 1st DCA 1974) (emphasis added). The Fourth District followed the holding in Dunmore, emphasizing that it is the insurer's burden to "authenticate the claim within the statutory time period." Martinez v. Fortune Ins. Co., 684 So.2d 201, 203 (Fla. 4th DCA 1996). Likewise, this court followed Dunmore, holding that the insurance company could not create an exception to the thirty-day rule by requiring that a claim be submitted on a particular in-house claims form. Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266 (Fla. 3d DCA 1995). This court, like the First and Fourth Districts, emphasized that there is no statutory provision that tolls the thirty-day period, and that the burden is on the insurer to authenticate the claim within thirty days. Crooks, 659 So.2d at 1268.

Fortune attempts to distinguish Crooks and Dunmore by reasoning that neither case construed the phrase "reasonable proof of such loss," and neither case analyzed whether an insurer could itself define that phrase. Although Fortune is correct on both counts, it overlooks...