11 Fla. L. Weekly Supp. 1006a
Insurance — Personal injury protection — Provider failed to comply with conditions precedent to suit where assignment of benefits was not attached to demand letter, and demand letter was sent to the wrong person — Requirement that demand letter be filed prior to suit cannot be circumvented by filing proper demand letter after suit was filed
PEARSON WELLNESS CENTER MEDICAL CORP., as assignee of DIANE MEADOWS, Plaintiff, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 2003-007658-CO-42. UCN No. 52-2003-CO-007658 XXSCSC. August 11, 2004. Myra Scott McNary, Judge. Counsel: Gregory J. Perenich. Reed H. Johnson.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY
JUDGMENT WITHOUT PREJUDICE AND CONDITIONALLY GRANTING
PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
THIS CAUSE having come on before the Court on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Leave to File an Amended Complaint on July 30, 2004, and the Court having reviewed the pleadings, heard argument of counsel, and being otherwise fully advised in the premise and the law, it is hereby,
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is GRANTED as the Plaintiff failed to comply with the conditions precedent under Florida Statute § 627.736(11) by not naming the proper party upon which to serve a fifteen (15) day demand letter and by not attaching an Assignment of Benefits to the demand letter.
The Plaintiff had filed a proper demand letter subsequent to the filing of the suit and the Court found pursuant to the Cesar Alava v. Omni Insurance Company, 11 Fla. L. Weekly Supp. 446a (Marion County March 15, 2004) that the Plaintiff’s attempt to serve a demand letter upon the Defendant after the suit was filed was ineffectual. The Plaintiff filed this action for recovery of claim PIP benefits on or about September 8, 2003. This was after the date of August 1, 2003 when the amendment to Florida Statute § 627.736(11) became effective on August 1, 2003. Prior to this date the Plaintiff had filed a demand letter on April 10, 2003. This demand letter did not contain an assignment of benefits and was sent to the PIP claim representative as opposed to the person, which the Defendant designated to the Department of Insurance for the purpose of receiving such demand letters. On December 16, 2003, the Plaintiff sent a second demand letter, which complied with the conditions precedent but was sent to the Defendant after the lawsuit had been filed.
The Court found that to allow the Plaintiff to file a demand letter after filing suit would circumvent the legislator’s intent to minimize litigation by requiring demand letters be served prior to suit. To allow the Plaintiff to file a demand letter after suit is filed would place the Defendant in the unenviable position of being penalized twice for the same claim. Once for the payment of the statutory penalty, interest and postage and secondly, in the form of payment of Plaintiff’s attorney’s fees and costs since the payment would be a confession of judgment.
Per stipulation between the counsel for both parties, it was agreed that if the Defendant pays pursuant to the demand letter that was sent in December of 2003, the Defendant would not incur any statutory penalty, interest or postage upon that payment. Additionally, they would not incur any attorney’s fees and costs. The Defendant is to have fifteen (15) days, from the date of the entry of this Order, in which to consider the December 2003 demand letter for the purpose of payment or denial. Denial of payment will allow the Plaintiff to file an Amended Complaint ten (10) days after the fifteen (15) days for the Defendant to consider payment has run. If the Plaintiff files an Amended Complaint, the Plaintiff and their attorney will not seek attorney’s fees and costs, other than the original filing costs, for any time and expense incurred prior to the filing of the Amended Complaint.
* * *
