11 Fla. L. Weekly Supp. 831b

Insurance — Personal injury protection — Demand letter — Where demand letter was addressed to wrong insurer at incorrect address, condition precedent to filing suit was not met — Second demand letter that met statutory requirements does not cure failure to satisfy condition precedent as it was not sent prior to filing suit

PHYSICIAN’S REFERRAL & MEDICAL SERVICES, INC. a/a/o REDDA PORTER, Plaintiff, vs. PROGRESSIVE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 03-7550 SP26 (04). June 23, 2004. Richard J. Suarez, Judge. Counsel: Thomas Paigo, Vernis & Bowling of Miami, P.A., North Miami, for Defendant. Jorge L. Montero, for Plaintiff.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS MATTER came before the Court on June 15, 2004 upon Defendant’s, Motion for Summary Judgment filed on February 13, 2004, and the Court having heard argument of counsel and being otherwise fully advised in the premises, hereby

ORDERS AND ADJUDGES as follows:Undisputed Facts

1. On or about August 24, 2001, it is alleged that REDDA PORTER was involved in an automobile accident.

2. At the time of the accident she was insured by a PROGRESSIVE CONSUMERS INSURANCE COMPANY (“PROGRESSIVE”) policy of insurance which included PIP coverage.

3. REDDA PORTER was treated for injuries from this accident at PHYSICIAN’S REFERRAL & MEDICAL SERVICES (Hereinafter “PHYSICIAN’S”).

4. On November 9, 2001, PROGRESSIVE sent a check to PHYSICIAN’S for $244.80 after receiving a Health Insurance Claim Form for treatment for REDDA PORTER by PHYSICIAN’S in the amount of $800.00.

5. On August 19, 2003, a demand letter was sent by PHYSICIAN’S pursuant to Fla. Stat. §627.736(11) addressed to Progressive Insurance Company, Attention: Sheila Estes-Waugh, Post Office Box 5444, Fort Lauderdale, Florida 33310-5444.

6. The proper insurance company under the policy of insurance was not Progressive Insurance Company but PROGRESSIVE CONSUMERS INSURANCE COMPANY (“PROGRESSIVE”). Pursuant to the same statute, the person authorized to receive demand letter notices on behalf of PROGRESSIVE was Tara Feeney, at 10901 Roosevelt Boulevard, Suite 1000 C, St. Petersburg, Florida 33716.

7. Plaintiff then filed the present lawsuit against Progressive Express Insurance Company. A Motion to Dismiss was filed alleging the improper Defendant being named. An agreed order was taken and Plaintiff filed its amended complaint against PROGRESSIVE which is presently before the Court and from which this summary judgment is taken.Conclusion of Law

Fla.R.Civ.P. 1.510(c) explains that a summary judgment may only be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The Court finds, in the instant action, that there is no genuine issue as to any material fact and that the Defendant is entitled to summary judgment as a matter of law.

§627.736(11) Fla. Stat. (2002) states in pertinent part as follows:

(11). DEMAND letter. —

(a). As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an attempt to initiate litigation . . . .

(b). The notice required shall state that it is a “demand letter under s.627.736(11)” and shall state with specificity:

(c). Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. . . . Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this section. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation the name and address of the person to whom notice is pursuant to the section shall be sent which the office shall make available on its internet web site. . .

Therefore, the statute unambiguously requires that the claimant, prior to filing any lawsuit for benefits, must provide the insurer with a demand letter which must be delivered to the person and to the address designated by the insurer.¹ Unless such requirements are met, suit is premature. As the demand letter in question was addressed to the wrong insurer at an incorrect address, the statutory conditions precedent to filing this lawsuit were not met. Therefore, the suit was premature and summary judgment is granted.

PHYSICIAN’S argues that the complaint was amended to name the correct insurer subsequent to sending the original demand letter at issue. PHYSICIAN’S also claims that subsequent to filing the amended complaint PHYSICIAN’S sent another demand letter that, allegedly, meets the statutory requirements. (That demand letter is not part of the record and cannot be considered by the Court). Therefore, PHYSICIAN’S argues that the requirements of Fla. Stat. §627.736(11) were met. Even if this Court could consider the second demand letter (which it declines to do) such a letter would still not cure the conditions precedent required by Fla. Stat. §627.736(11) and the suit would still be premature. Statutorily, a proper demand letter that meets the requirements of Fla. Stat. §627.736(11) must be sent prior to the action first being filed. If not, the condition precedent to filing suit has not been met, and any attempt to file a demand letter after litigation has been commenced would be a nullity and suit would still be premature.

For the above stated reasons, this Court grants Defendant’s’ Motion for Final Summary Judgment.

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¹As the statute is unambiguous, it must be given effect as written. Woodham vs. Blue Cross and Blue Shield of Florida, Inc., 793 So.2d 41 (Fla. 3d DCA 2001).

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