11 Fla. L. Weekly Supp. 1027a
Insurance — Personal injury protection — Presuit demand letter which was incorrectly addressed to an address other than that specified by the insurer for the purposes of receiving notices under PIP law did not satisfy condition precedent to suit — Appropriate disposition is to abate case so that plaintiff can attempt to correctly comply with statutory presuit requirements
MILLER CHIROPRACTIC CENTER, (a/a/o Anne Marie Hayden), Plaintiff, v. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-2226 COSO 62. August 23, 2004. Robert W. Lee, Judge. Counsel: Bernard H. Butts, Jr., Hialeah, for Plaintiff. Lawrence Popritkin, Hollywood, for Defendant.
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause came before the Court for hearing on August 4, 2004 on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument; reviewed the Motion and entire Court file; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, finds as follows:
Findings of Fact: This is a PIP lawsuit. The Plaintiff sent the required pre-suit demand letter. However, the letter was incorrectly addressed to an address other than that “specified by the insurer for the purposes of receiving notices under the PIP law. Fla. Stat. §627.736(11)(c)(2003). The Plaintiff concedes the error, but claims that it is not fatal to its case. Additionally, although the letter was incorrectly addressed, it is undisputed that the Defendant did in fact receive it.
Conclusions of Law: Under Florida law, an insurer need not show prejudice when the insured breaches a condition precedent to suit. Goldman v. State Farm Fire General Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995). Clearly, the requirement of a proper demand letter is a condition precedent to suit. As a result, the Defendant is entitled to relief. The question is what type of relief.
In Goldman, the appellate court considered the possibility of remanding to the trial court with instructions that the insured comply with the condition precedent, but it declined to do so. The Court noted that too much time had passed since the accident — two years — and further that to do so would not satisfy “the spirit nor intent of the policy condition at issue.” Id. at 305. As the Defendant acknowledges in his Motion in this case, the spirit and intent of the pre-suit demand letter requirement is “to prevent unnecessary litigation and to afford insurers with an opportunity to pay for benefits prior to the filing of a suit.”
Subsequent to Goldman, another Florida appellate court issued its decision concerning the constitutional implications of statutory pre-suit demand letters. Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283 (Fla. 5th DCA 2004). In this case, the appellate court held that pre-suit notice requirements had to be “construed in a manner that favors access to courts.” Id. at 286. The reason for this is to not “unduly restrict a citizen’s guaranteed access to the courts.” Id. However, a trial court should at the “same time carry [ ] out the legislative policy of screening out frivolous lawsuits and defenses.” Id.
If the court were to grant the relief sought by the Defendant, the Plaintiff would be barred from recovery. The Defendant provided the court trial level authority for the proposition that a judgment can be entered “without prejudice” to refiling the case after compliance. See Feigenbaum v. Progressive American Ins. Co., 11 F.L.W. [Fla. L. Weekly] Supp. 737 (Sarasota Cty. Ct. 2004); Simon v. Progressive Express Ins. Co., 11 F.L.W. [Fla. L. Weekly] Supp. 347 (Palm Beach Cty. Ct. 2004). The Court respectfully disagrees with such a disposition.
To honor all competing policies, the court believes the appropriate disposition is to abate this case so that the Plaintiff can attempt to correctly comply with the statutory pre-suit requirements. If it does so, then the Defendant will have the statutorily prescribed deadline to respond. If the Defendant pays the claim within the deadline, then it will not of course be subject to an award of attorney’s fees. In either case, the Defendant may also be entitled to an award of sanctions. See Advanced Orthopedic Institute v. State Farm Mutual Automobile Ins. Co., 11 F.L.W. [Fla. L. Weekly] Supp. 247 (Palm Beach Cty. Ct. 2004). Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED IN PART. This case is abated for 60 days to allow the Plaintiff an opportunity to comply with statutory pre-suit requirements.
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