11 Fla. L. Weekly Supp. 737a
Insurance — Personal injury protection — Demand letter — Sufficiency — Letter does not comply with requirements for pre-suit demand letter as it does not state it is demand letter; does not state name of insured, claim or policy number upon which claim was originally submitted, or name of medical provider who rendered treatment; does not include itemized statement specifying exact amount, date of treatment, and type of benefit claimed to be due; was not sent to person designated by insurer to receive demand letters; and was not sent by certified or registered mail, return receipt requested — Even if letter were intended as demand letter, provider did not allow insurer 15 days after receipt before filing suit — Summary judgment in favor of insurer is appropriate despite ongoing discovery as no further discovery will reflect upon sufficiency of purported pre-suit demand letter
JACOB FEIGENBAUM, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2003-CC-17277-NC. May 11, 2004. Kimberly Carlton Bonner, Judge. Counsel: Martin A. Rosen. Michele C. Pittman, Gale L. Young, P.A., Tampa.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND ENTERING FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came on to be heard on April 29, 2004, upon the Defendant’s Motion for Summary Judgment, and the Court having heard argument of counsel and being otherwise duly advised in the premises, the Court finds in favor of the Defendant and further finds as follows:
l. The Defendant moves for Summary Judgment on the basis of Florida Statutes § 627.736(11) as revised 2003, effective August 1, 2003, commonly known as the 15-day pre-suit demand requirement.
2. It is undisputed that Plaintiff filed this law suit on November 21, 2003, alleging Defendant’s breach of contract with regard to Personal Injury Protection benefits allegedly owed to Plaintiff. See Summons dated November 21, 2003.
3. Plaintiff’s answers to Defendant’s written interrogatories indicate that Plaintiff did not submit a pre-suit demand letter to Defendant. However, Plaintiff alleges that a letter presented to the Court, dated November 18, 2003, is a demand letter meeting the statutory requirements.
4. The Court finds that the November 18, 2003 letter presented by Plaintiff does not comply with the requirements of Florida Statutes § 627.736(11)(b), as the letter does not state that it is a demand letter under § 627.736(11); does not state the name of the insured upon which such benefits are being sought; does not state the claim number or policy number upon which such claim was originally submitted to the insurer; does not provide the name of any medical provider who rendered to the insured the treatment, services, accommodations, or supplies that forms the basis for such claim; and does not include an itemized statement specifying the exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.
5. The Court further finds that the letter of November 18, 2003 does not comply with the requirements of § 627.736(11)(c), as there is no indication that the letter was delivered to the Defendant insurer by United States certified or registered mail, return receipt requested. The letter was also not sent to the person designated by the insurer to receive demand letters, but was instead sent to the adjuster handling the Plaintiff’s claim.
6. The facts are undisputed that the Plaintiff sent the letter of November 18, 2003 to the Defendant with a copy of Plaintiff’s Complaint attached, and Plaintiff filed Plaintiff’s Complaint on November 21, 2003, only three days after sending the letter. The terms of Florida Statutes § 627.736(11)(d) (2003), give the insurer 15 days from receipt of the demand letter to pay the outstanding claim(s). Therefore, even if Plaintiff’s letter of November 18, 2003 was intended as a demand letter, Plaintiff did not allow the insurer the required 15 days from receipt of the demand set forth in § 627.736(11)(d) before filing this lawsuit.
7. Plaintiff argues that Summary Judgment is inappropriate at this time because discovery is ongoing and depositions remain to be taken in this matter. The Court finds that Summary Judgment is appropriate at this time, as no further discovery will reflect upon the sufficiency of the purported pre-suit demand letter presented by the Plaintiff.
8. Sending a demand letter to the insurer is a condition precedent to filing any action for benefits under § 627.736 (2003), Plaintiff failed to comply with a condition precedent to suit, and therefore Defendant is entitled to Summary Judgment as a matter of law. See Dr. Robert D. Simon, M.D., P.A. v. Progressive Express Ins. Co., 11Fla. L. Weekly Supp. 347a (Fla. Palm Beach Cty. Ct., Feb. 5, 2004); Mobile Diagnostic Imaging, LLC v. Allstate Indem. Co., 11Fla. L. Weekly Supp. 361a (Fla. Broward Cty. Ct., Jan. 20, 2004); Fraser v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 161a (Fla. Hillsborough Cty. Ct., Dec. 9, 2003); Advanced Orthopedic Rehabilitation v. State Farm Mut. Auto. Ins. Co., 11Fla. L. Weekly Supp. 48b (Fla. Hillsborough Cty. Ct., Jun. 30, 2003).
WHEREFORE it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Final Judgment is hereby entered in favor of Defendant. Plaintiff shall take nothing by this action, and Defendant shall go hence without delay. The entry of Final Summary Judgment in this matter does not preclude the Plaintiff from serving upon Defendant a proper demand letter meeting the requirements of Florida Statutes § 627.736(11). The Court reserves jurisdiction to determine Defendant’s entitlement to the award of fees and costs pursuant to Florida Statutes § 768.79, and any amount and other relief as the Court deems just and proper.
[See 12 Fla. L. Weekly Supp. 182b.]
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