11 Fla. L. Weekly Supp. 674a
Insurance — Personal injury protection — Plaintiff not entitled to summary judgment on claim that insurer breached its statutory obligation to provide a claimant an itemized specification of each item that insurer has reduced, omitted, or declined to pay, where there is disputed issue of fact as to what type of notice of claim was in fact provided by plaintiff
MIAMI CHIROPRACTIC ASSOCIATES, INC., a/a/o Fernando Monch, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-2261 COSO 62. May 24, 2004. Robert W. Lee, Judge. Counsel: Christopher M. Tuccitto, North Miami, for Plaintiff. Julie H. Terry, Fort Lauderdale, for Defendant.
[Editor’s note: See 12 Fla. L. Weekly Supp. 391a.]
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on May 20, 2004 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s reviewed the Motion and entire Court file; heard testimony; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
This is a PIP case. The Plaintiff claims that the Defendant breached its obligation under Fla. Stat. §627.736(4)(b) which requires an insurer to provide a claimant “an itemized specification of each item that the insurer ha[s] reduced, omitted, or declined to pay.” The Plaintiff has provided as record evidence a series of letters from the insurer, supported by sworn deposition, which provides, in essence, that whatever notice of claim was provided by the claimant was rejected in its entirety as being insufficient under the statute. The letters do not specify precisely what is deficient, but it is clear the insurer is rejecting the “claim” in total. Nowhere in the record, however, is there any indication of what type of notice was in fact provided by the Plaintiff. The Defendant has denied in its filed Answer that it was provided notice of a claim. As a result, the movant is responsible to set forth competent evidence establishing the notice of claim. Rule 1.510(e). This the Plaintiff did not do. Without a notice of claim, the provisions of Fla. Stat. §627.736(4)(b) do not kick in. As a result, there remains an outstanding disputed issue of material fact, thereby eliminating entitlement to summary judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion is DENIED.
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