11 Fla. L. Weekly Supp. 347a
Insurance — Personal injury protection — Where provider/assignee sent noncompliant pre-suit demand letter which did not contain assignment of benefits, provider/assignee sent complaint demand letter after suit was filed, and assignment provided to insurer during claims process was not sent to recipient designated for purposes of receiving pre-suit demand letters, summary judgment is granted in favor of insurer — Case closed without prejudice
DR. ROBERT D. SIMON, MD, PA (Napoleon Pham-Vo), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 03-CC-024134-RB. February 5, 2004. Donald W. Hafele, Judge. Counsel: Joseph G. Murasko, Dickstein, Reynolds, Woods & Murasko, P.A., North Palm Beach. Jeff D. Vastola, West Palm Beach.
ORDER CONTAINING FINAL SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE having come before the Court upon Defendant’s Motion for Summary Judgment and the Court having heard argument of counsel and considered the record evidence in this matter finds in favor of the Defendant and further finds as follows:
1. The Defendant moves for summary judgment on the basis of §627.736(11) as revised 2003 with an effective date of August 1, 2003. This is commonly referred to as the pre-suit demand letter requirement.
2. The undisputed facts established that the law suit was filed on September 19, 2003. It is undisputed that the Plaintiff sent a non-compliant pre-suit demand dated August 20, 2003. It is undisputed that this pre-suit demand letter was non-compliant in that it did not contain an assignment of benefits. The Defendant argues strict statutory construction of the technical requirements of the statute.
3. The Plaintiff alleges substantial compliance in that subsequent to the filing of the law suit another compliant demand letter was sent September 24, 2003. The Plaintiff also argues that the assignment document was provided to the Defendant in the claims process.
4. The Defendant rebuts Plaintiff’s argument, and Plaintiff concedes, that 627.736(11)(c) provides that “such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection.”. Plaintiff freely admits that the assignment sent during the claims process was not sent to the designated recipient for purposes of receiving such pre-suit demand letters.
WHEREFORE, this Court grants final summary judgment in favor of the Defendant, Progressive Express Insurance Company which shall go hence without day and Plaintiff shall take nothing by this action but finds that because this was not rendition of the judgment underlying no-fault dispute and merely on the basis of failure to comply with a pre-suit condition precedent, this particular case is closed without prejudice but without leave to amend in the event Plaintiff chooses to attempt proper compliance with the statutory prerequisite. The Court reserves jurisdiction on fees.
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