County Civil Court: INSURANCE – Trial court’s retroactive application of Florida Statutes § 627.736(10), effective January 1, 2008, was erroneous in light of the Florida Supreme Court’s supervening decision in Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), holding that the statutory presuit notice provision is substantive rather than procedural and therefore should not be given retroactive application. Final Judgment reversed and remanded. Melka v. Mercury Insurance Company of Florida, No. 09-000056AP-88B (Fla. 6th Cir. App. Ct. October 27, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
v. Ref. No.: 09-000056AP-88B
COMPANY OF FLORIDA,
THIS CAUSE is before the Court an appeal from the Order of Final Summary Judgment entered by the County Court on November 4, 2009, nunc pro tunc October 20, 2009. Appellant Steven Melka argues that the County Court erred by granting Appellee Mercury Insurance Company summary judgment based on Appellant’s failure to comply with the statutory presuit
requirement. Specifically, the County Court found that the Appellant filed suit prematurely by affording Mercury less than thirty days to respond to his demand for Personal Injury Protection benefits in violation of Florida Statutes section 627.736(10), effective January 1, 2008. Appellant argues that he gave proper notice under section 627.736(11), the statute in effect at the time the insurance policy was issued and which provided for a fifteen-day pre-suit notice period.
In Menendez v. Progressive Express Insurance Company, 35 So. 3d 873 (Fla. 2010), the Florida Supreme Court held that the statutory presuit notice provision is substantive rather than procedural and therefore should not be given retroactive application. The Florida Supreme Court quashed the decision of the Third District Court of Appeal, Progressive Express Insurance Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008), the authority argued by Mercury before the trial court and in response to this appeal.
In light of the supervening decision in Menendez, the presuit notice requirements of section 627.736(10) do not apply retroactively to the Appellant’s lawsuit. Accordingly, it is
ORDERED AND ADJUDGED that Order of Final Summary Judgment is REVERSED, and the matter is REMANDED to the County Court for further proceedings consistent with this decision.
DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida, this 27th day of October 2010.
Original order entered on October 27, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.
James J. Dowling, Esquire
1150 Tampa Road
Palm Harbor, FL 34683
Attorney for Appellant
David B. Kampf, Esquire
400 N. Ashley Street, Suite 1625
Tampa, FL 33602
Attorney for Defendant