11 Fla. L. Weekly Supp. 446a
Insurance — Personal injury protection — Conditions precedent — Demand letter — Correspondence from plaintiff to insurer that failed to state plaintiff was serving demand letter under section 627.736(11) and which was not served upon person specified by insurer for receiving service of notices under statute did not satisfy statutory condition precedent — Attempt to serve demand letter after suit was filed was ineffectual, but correspondence still constitutes valid demand letter to which insurer has fifteen days to respond — Complaint dismissed without prejudice
CESAR ALAVA, Plaintiff, v. OMNI INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Marion County. Case No. 03-1012 CC. March 15, 2004. Frances King, Judge. Counsel: Ronald Webster, for Plaintiff. Rachel P. Ray, Hengber, Goldstein & Ray, P.A., Orlando, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR PLAINTIFF’S FAILURE TO COMPLY WITH §627.736(11), FLORIDA STATUTES
THIS CAUSE having come on to be heard Defendant’s Motion to Dismiss Plaintiff’s Complaint, having heard argument from counsel on February 20, 2004 and the Court being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED
Defendant’s Motion to Dismiss Plaintiff’s Complaint is GRANTED without prejudice.
Plaintiff filed this action for recovery of claimed PIP benefits on or about September 30, 2003. Plaintiff did not serve Defendant with a Demand and Notice of Intent to Initiate Litigation pursuant to §627.736(11), Florida Statutes. Defendant filed its Motion to Dismiss for failure to comply with §627.736(11), F.S. on or about November 12, 2003. Thereafter, on or about December 4, 2003 Plaintiff served Defendant’s agent with a Demand Letter and Notice of Intent to Initiate Litigation.
Plaintiff failed to comply with the condition precedent delineated in §627.736(11), Florida Statutes. Previous correspondence from Plaintiff counsel to Defendant that failed to state that Plaintiff was serving a “demand letter under s. 627.736(11),” did not satisfy the statutory requirements as specified in §627.736(11)(b), F.S. Plaintiff counsel’s prior correspondence to Defendant’s adjuster did not comply with the statutory requirement that the demand letter be served upon the person specified by the insurer for purposes of receiving notices under §627.736(11), F.S. Furthermore, Plaintiff’s attempt to serve a Demand Letter upon the Defendant after suit was filed was ineffectual. To allow Plaintiff to file a demand letter after filing suit would circumvent the Legislature’s intent minimize litigation by requiring demand letters be served prior to suit. To allow the Plaintiff to file a demand letter after suit is filed would also place the Defendant in the uneviable position of being penalized twice for the same claim. §627.736(11), F.S. provides penalties of a maximum of $250 against the insurer when the insurer chooses to pay a claim upon receipt of a demand letter. However, once suit is filed, payment on a claim would result in a Confession of Judgment and the potential award for Plaintiff’s reasonable attorney’s fees and costs associated with filing and/or prosecuting the action. As a result, if the Defendant were to pay on a Demand Letter served after suit was filed, the Defendant could be liable for penalties pursuant to the statute and in the form of Plaintiff attorney’s claim for reasonable fees and costs.
For the reasons stated above, the Plaintiff’s Complaint is dismissed without prejudice.
The Court further rules, that while the Demand Letter dated December 4, 2003 was ineffectual because it was filed while litigation was pending, it constitutes a valid Demand Letter and Defendant has 15 days from the date of this hearing held on February 20th 2004 to respond to this notice pursuant to §627.736(11), F.S.
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