Progressive Express Ins. Co., Inc. v. Menendez, 120507 FLCA3, 3D06-2570

CourtFlorida Court of Appeals. Third District
PartiesProgressive Express Insurance Co., Inc., Appellant, v. Louis R. Menendez, Jr. and Cathy Menendez, Appellees.
Docket Number3D06-2570
Date05 December 2007

Progressive Express Insurance Co., Inc., Appellant,


Louis R. Menendez, Jr. and Cathy Menendez, Appellees.

No. 3D06-2570

Florida Court of Appeals, Third District

December 5, 2007

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge, Lower Tribunal No. 02-1381.

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.



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"), entered 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 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.

Both parties 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 section 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 section 627.736(11) did not apply to any part of Menendez's PIP claim, and that even if section 627.736(11) did apply, she was not required to serve a presuit written demand because "Progressive effectively denied Menendez's claim."

Legal Analysis

The presuit notice requirement relied upon by Progressive is contained in section 627.736(11), Florida Statutes (2001). Section 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.


(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).

§ 627.736(11)(a), Fla. Stat. (2001) (emphasis added).

The plaintiffs argue that they were not required to provide Progressive with presuit notice pursuant to section 627.736(11) because: (1) Progressive denied Menendez's PIP claim; (2) the issuance of the policy and Menendez's accident occurred prior to the effective date of the legislation adding this presuit notice requirement; and (3) the presuit notice requirement does not apply to wage loss benefits.

Our review of the trial court's order granting summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000); Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006). Summary judgment may only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County, 760 So.2d at 130. All doubts and inferences must be resolved in favor of the non-moving party, and if the "slightest doubt" exists, then summary judgment is not available. Sheikh, 943 So.2d at 244 (citing Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000)).

Whether Progressive Denied the Plaintiffs' Claim Is a Disputed Issue of Fact

The plaintiffs argue that "[t]he undisputed evidence before the trial court conclusively establish[es] that Progressive denied Mrs. Menendez's claim for PIP benefits," thereby relieving the plaintiffs of any obligation they may have had to provide Progressive with presuit notice. In support of this argument, the plaintiffs filed an affidavit in which their attorney averred that he had phone conversations with Progressive wherein Progressive denied the plaintiffs' claims and maintained that it owed the plaintiffs nothing because Menendez previously received workers' compensation benefits.

While we agree with the plaintiffs that the presuit written demand requirements of section 627.736(11), Florida Statutes (2001), do not apply where an insurer denies a PIP claim, see § 627.736(11)(a) (providing that "such notice is not required for an overdue claim that the insurer has denied or reduced"), there is, however, a material disputed issue of fact as to whether Progressive denied the plaintiffs' claim, thereby precluding summary judgment.

A review of two letters sent by Progressive to Mr. Eden, the plaintiffs' counsel, suggests that contrary to the affidavit submitted by Mr. Eden, wherein he averred that Progressive's adjuster had repeatedly and consistently advised that Progressive was not obligated to pay PIP benefits to Menendez as she had received workers' compensation benefits, Progressive did not refuse to pay PIP benefits to Menendez. In a letter dated April 15, 2002, Progressive's representative stated, "I need a copy of what they [workers' compensation] have paid and a copy of their lien if they are filing one so they can be reimbursed." (Emphasis added). On June 4, 2002, in response to Menendez's letter requesting reimbursement of the $2000 Menendez allegedly paid to satisfy a lien filed by workers' compensation and stating that she has also sustained lost wages, Progressive requested information and documentation regarding the workers' compensation lien and asked whether Menendez's lost wages were paid. The content of these letters suggests that Progressive intended to pay the plaintiffs' PIP claim upon receipt of appropriate documentation. Because these letters conflict with Mr. Eden's affidavit as to whether Progressive denied Menendez's PIP benefits claim, the conflict presents a disputed issue of fact precluding summary judgment.

Although it is axiomatic that an anticipatory breach of a contract excuses the non-breaching party from contractual compliance, Fabel v. Masterson, 951 So.2d 934, 936 (Fla. 4th DCA 2007), before rising to the level of anticipatory repudiation, "the refusal must be distinct, unequivocal, and absolute." Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463...

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