18 Fla. L. Weekly Supp. 1139a
Online Reference: FLWSUPP 1811CHAR
Insurance — Personal injury protection — Declaratory judgment — Demand letter — Presuit demand letter was required prior to filing declaratory judgment action requesting payment of benefits — Where insured did not serve any demand letter, court need not determine whether 2008 PIP statute’s requirement of 30-day demand letter has retroactive application — Demand letter served after filing suit does not cure defect — Insurer’s motion for summary judgment is granted
KARIMALI CHARANIA and ANISHA CHARANIA, Plaintiffs, vs. ALLSTATE INSURANCE COMPANY, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 08-CA-3662. April 21, 2011. Honorable Jose R. Rodriguez, Judge.
FINAL JUDGMENT BASED ON PLAINTIFF’S FAILURE TO COMPLY WITH PRESUITDEMAND REQUIREMENTS
THIS CAUSE came on before the Court on Defendant’s Motion for Final Summary Judgment based on Plaintiff Anisha Charania’s failure to comply with Florida Statutes §627.736(11, and the Court being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
1. On October 26, 2007, after the sunset of no-fault, Anisha Charania was involved in an automobile accident while driving a vehicle insured by Defendant, Allstate Insurance Company (“Allstate”).
2. The policy period for Anisha Charania’s contract of insurance in effect with Allstate at the time of the subject accident was from July 11, 2007 to January 11, 2008.
3. As a matter of law, the provisions of the 2007 version of the No-Fault statute were incorporated in Anisha Charania’s policy at the time it was renewed on July 11, 2007. See Lumbermans Mutual Casualty Co. v. Ceballos, 440 So.2d 612, 613 (Fla 3d DCA 1983), Progressive Express Insurance Co., Inc., v. Menendez, 979 So.2d 324, 330 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], reversed on other grounds (citing Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]), rev. gr., 994 So.2d 1105 (Fla. 2008).
4. F.S. § 627.736(11) (2007) provided in pertinent part:
(11) DEMAND LETTER. —
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. 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).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shalt state with specificity:
* * *
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if so requested by the claimant in the notice, when the insurer pays the claim. Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation of the name and address of the person to whom notices pursuant to this subsection shall be sent which the office shall make available on its Internet website. The name and address on file with the office pursuant to s. 624.422 shall be deemed the authorized representative to accept notice pursuant to this subsection in the event no other designation has been made.
5. (d) If, within 15 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer.
6. Anisha Charania began treatment with Physical Medicine Group, LLC. on November 29, 2007 and the first bills submitted to Allstate were received December 20, 2007.
7. On January 1, 2008, Florida’s No-Fault Statute was re-enacted. The new statute (F.S. §627.736) required a presuit demand letter thirty days prior to suit being filed. This Court does not reach the issue of whether the 2008 presuit demand letter violated as neither a 15-day nor 30-day presuit demand letter was served.
8. On February 20, 2008, Anisha Charania filed the instant suit alleging, inter alia, breach of contract against Allstate for failing to pay bills for her medical treatment related to the subject accident.
9. On March 19, 2008, one month after filing suit, Plaintiff submitted a mileage claim in the amount of $54.54.
10. On March 20, 2008, also one month after filing suit, Anisha Charania’s counsel sent a “Pre-Suit Demand Letter Pursuant to F.S. 627.736(10)” which demanded payment of past medical bills from Physical Medicine Group as well as “future treatment not yet rendered.”
11. On July 11, 2008, Anisha Charania amended her pleadings with the Second Revised Amended Complaint and Petition for Declaratory Relief (“operative Complaint”). This amendment relates back in time to February 20, 2008, the date the original Complaint was filed. See Fla. R. Civ. P. 1.190(c); See also Thompkins v. Acadia Partners, L.P., 702 So.2d 1340, 1341 (Fla. 5th DCA, 1997) [22 Fla. L. Weekly D2799a].
12. In Count I of the operative Complaint, Plaintiff alleged that “[n]o PIP demand letter pursuant to Florida Statute 627.736(11) is required because Florida Statute 627.736(11) was not in effect on date of the accident.” Operative Complaint at ¶68.
13. Plaintiff also alleged that “if a demand letter was required, [she] submitted a demand letter on March 20, 2008 in compliance with Florida Statute 627.736(11) to Defendant requesting Defendant to pay the PIP demand and statutory penalty and interest.” Id. at ¶69.
14. Plaintiff failed to comply with the demand letter requirement of Section 627.736(11)(2007) or Section 627.736(10)(2008) by not submitting a presuit demand letter prior to filing suit. See Menendez v. Progressive Express Insurance Co., Inc., 35 So.3d 873 (Fla 2010) [35 Fla. L. Weekly S222b].
15. F.S.§ 627.736(11), which is substantive law. It required 15 days notice to the insurer as a condition precedent to filing suit for unpaid benefits.
16. The 2008 No-Fault Law, which took effect on January 1, 2008, amended the substantive requirements of Plaintiff’s existing policy, and is deemed to be incorporated therein. The Florida Motor Vehicle No-Fault Law, as revived and amended by Chapter 2007-324, included the renumbered and amended 30-day presuit demand letter requirement of Section 627.736(10). Ch. 07-324, §21(6), Laws of Fla. The Court is not reaching the issue of whether the 2008 no-fault statute has retroactive applications. The undisputed facts show that Plaintiff did not serve any presuit demand.
17. The presuit demand letter requirements are an unambiguous condition precedent to the filing of the plaintiffs’ lawsuit claiming an insurer’s failure to provide PIP benefits.
18. The presuit demand letter requirement of Florida’s No-Fault Statute applies in this case. Anisha Charania failed to comply with this statutory condition precedent to filing suit, and her demand letter submitted after filing suit does not cure this defect. Due to Anisha Charania’s failure to fulfill the No-Fault Law’s presuit demand letter requirement, Allstate is entitled to entry of summary judgment as a matter of law.
19. In Count II of Plaintiff’s cause of action, Plaintiff re-alleged Count I for no-fault benefits, requested med-pay payment, and requested damages.
20. Under Florida law, no-fault benefits are primary over all other coverages, including med-pay. F.S. §627.736 provides, in pertinent part:
(4) BENEFITS; WHEN DUE. — Benefits due from an insurer under ss. 627.730-627.7405 shall be primary, . . . (Emphasis added)
21. Medical payments coverage is intended to pay the 20% not covered by no-fault.
22. To the extent services are not payable under no-fault, they are not compensable under med-pay. See First Health Chiropractic a/a/o Miguel Amill v. State Farm Fire & Casualty Company, 15 Fla.L.Weekly Supp. 1102a.
23. Sending a demand letter to the insurer was a condition precedent to filing any action for benefits. The correct remedy for failing to comply with the presuit notice requirements is summary judgment.
24. Plaintiff’s Complaint/Declaratory action clearly requests the payment of benefits, and thus, a presuit demand letter was required.
25. Count I is hereby dismissed as Plaintiff has not prevailed on any issue in this litigation and can not comply with the condition precedent to filing of a bad faith cause of action.
It is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment Based on Plaintiff’s Failure to Comply With the Pre-Suit Notice Requirement of §627.736(11), Florida Statutes is GRANTED. Plaintiff shall go hence without a day.
