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

APPELLATE DIVISION

 

STEVEN MELKA,

                        Appellant,

v.                                                                                      Ref. No.: 09-000056AP-88B

                                                                                         UCN: 522009AP000056XXXXCV

MERCURY INSURANCE

COMPANY OF FLORIDA,

                        Appellee.

__________________________________/

 

ORDER

            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.

 

 

 

Copies to:

 

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