Failure to pay penalty statutory penalty does not allow legal fees

SOUTH FLORIDA PAIN & REHABILITATION OF WEST DADE v. INFINITY AUTO INSURANCE COMPANY (No. 4D21-438)(Fla 4th DCA 2021)

In Florida, the rule is that the provider has to send a demand letter before filing a lawsuit. The carrier then has 30-days to pay what is owed with interest, postage and a 10% penalty up to $250. What happens if the carrier pays the overdue bill with interest but omits the penalty? Many County Court decisions down here have said that provider can bring suit and collect its attorneys fees (which usually start at $2000-$2700). In an interesting twist down here, the former “Appellate Divisions” (New York’s Appellate Terms) were for the most part eliminated and appeals go to the District Court of Appeals (DCA’s). My thought was that when that happened here, the providers bar would lose out. That happened here:

“Lastly, the provider argues that denying attorney’s fees in these cases would leave insureds and their medical provider assignees “vulnerable to insurance compan tactics of refusing to abide by statutory obligation to pay the
penalty on late payments.” However, in examining a statute’s intent or its application’s consequences, our role is not to second-guess the Legislature’s exclusion of penalty and postage from the definition of PIP benefits. See Moretrench Am. Corp. v. Taylor Woodrow Constr. Corp., 565 So. 2d 861, 862 (Fla. 2d DCA 1990) (“A court’s employment of perceived rationality and sensibleness as a guide to ascertaining legislative intent … is in contrast to a situation where
there is a clear manifestation of legislative intent which may not lead to what a court perceives to be a wise result.” (citation omitted)); see also Pfeiffer v. City of Tampa, 470 So. 2d 10, 17 (Fla. 2d DCA 1985) (“A court’s construction of statutes need not produce what the court might perceive to be a wise result in order to constitute a rational interpretation of legislative intent.”). Again, if the Legislature intended penalty and postage to be a PIP “benefit” for entitlement to attorney’s fees when an insurer fails to timely pay those amounts, it would have provided for this in the statute. See Rollins, 761 So. 2d at 298″

Who would bring a lawsuit for $275 when it costs $130 to bring the lawsuit?

For some frame of reference, think of Broward County Court as Civil Kings and Miami-Dade County Court as Civl Queens in its heyday 🙂

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