11 Fla. L. Weekly Supp. 733b
Insurance — Personal injury protection — Coverage — Defenses — Fraud defense is stricken where insurer has failed to comply with requirement to plead elements of fraud with particularity and has failed to provide any record evidence of fraud — Demand letter — Providers substantially complied with intent of section 627.730(11) in sending demand letters, despite fact that letters were not sent to insurer’s designated representative, where insurer never contended that letters were never received, were legally deficient in any way or whether statute was even applicable to claims
CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-8119 SP 25 (2). May 19, 2004. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead, Downs & Associates, Coral Gables. Stephen F. Coxhead.
[Editor’s note: Final Judgment published at 11 Fla. L. Weekly Supp. 735b.]
ORDER DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT
THIS CAUSE having come to be heard on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY’s, Motion for Directed Verdict, pursuant to Rule 1.480, Fla.R.Civ.Pro., the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. DENIED. The Defendant’s fraud defense has not been pled properly and/or the Defendant has failed to provide any record evidence of fraud as of this date. Florida Rule of Civil Procedure 1.120(b) states in pertinent part, “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake should be stated with such particularity as the circumstances may permit”. Fla.R.Civ.Pro. 1.120(b). As long has been the rule in Florida that whenever fraud is relied on, allegations relating thereto should be specific, and facts constituting fraud should be clearly stated, and that position has not been abandoned by the adoption of the Florida Rules of Civil Procedure. Kutner v. Kalish, 173 So.2d 763 (Fla. 3rd DCA 1965).
2. Failure to allege fraud with particularity is grounds for dismissal of the claim. General Dynamics Corp. v. Hewitt, 225 So.2d 561(Fla. 3rd DCA 1979). Elements of fraud are misrepresentation of material fact, knowledge that misrepresentation is false, intention that the other party rely, justifiable reliance and resulting injury or damage. See Eastern Cement v. Halliburton Co., 600 So.2d 469 (Fla. 4th DCA 1992); Arnold v. Weck, 388 So.2d 269 (Fla. 4th DCA 1980).
3. The Defendant has failed to comply with these requirements in this case, has failed to prove fraud as of this date, and this defense is stricken and/or the Court rules in favor of the Plaintiff on this issue accordingly and denies the Defendant’s motion.
4.Also, in the event thatFla. Stat. 627.736(11) applies in this case, the Court finds that the Plaintiffs substantially complied with the intended purpose of the statute. It was undisputed that the demand letters were sent to United Automobile, however, they apparently were not sent to the designated representative. The Defendant, in its case in chief through Mr. Anthony Gregory, never contended that the demand letters were never received, were legally deficient in any way, or whether the statute was even applicable to the subject claims.
5. Finally, in regards to the Defendant’s argument pertaining to Box 31, the Court does not find anything legally insufficient pertaining to any of the medical bills submitted by the Plaintiffs to the Defendant.
* * *
