12 Fla. L. Weekly Supp. 151c
Insurance — Personal injury protection — Demand letter — Before medical provider can file amended complaint to include additional charges for unpaid PIP benefits for dates of service not mentioned in original complaint, provider must send demand letter for additional charges
BUCHANAN CHIROPRACTIC CENTER, (as assignee for Carolina Vial (a minor), by and through her parent and guardian Maria Gery), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County, Small Claims Court. Case No. 16-2003-SC-007842, Division E. June 25, 2004. Sharon Tanner, Judge. Counsel: David G. Candelaria, for Plaintiff. Christopher K. Leifer, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO AMEND COMPLAINT
This cause, coming before the Court on Plaintiff’s Motion to Amend Complaint and the Defendant’s objection thereto, and the Court having heard argument of both counsel and having considered relevant Florida law finds that:
1. The Plaintiff filed a lawsuit on or about July 30, 2003 seeking unpaid No-Fault benefits for treatment provided by the Plaintiff to the Defendant’s insured, Carolina Vial, arising from a motor vehicle accident that occurred on January 26, 2003.
2. On or about February 4, 2004, the Plaintiff filed its Motion to Amend Complaint to include additional charges for unpaid No-Fault Benefits, for dates of services not mentioned in the original Complaint, and changing the amount of No-Fault Benefits due.
3. The Defendant objected to the Plaintiff’s Amended Complaint and argued that the Plaintiff is required to submit a “pre-suit demand letter” as required by Florida Statute §627.736(11)(a) (2003), then move to amend the Complaint after the statutory 15-day demand period has elapsed.
4. Effective August 1, 2003, the Legislature amended Florida Statute §627.736(11)(a) to require that a demand letter be sent to the insurer before litigation could be commenced. The Legislature made this a condition precedent to filing any action against the insurer.
5. The cause of action against the Defendant is not the motor vehicle accident that precipitated the injuries to the Plaintiff. The cause of action against the Defendant arises out of a breach of contract to provide insurance benefits. The proposed amended Complaint actually is alleging separate and distinct breaches of the contract of insurance.
6. The Legislature has the authority to amend this statute to require that a demand letter be sent as a condition precedent to filing an action.
In consideration of the above, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Amend Complaint is granted except, however, before the Plaintiff can file the amended Complaint it must comply with the provisions of Florida Statute §627.736(11)(a). In the event the insurer does not respond, within the applicable time period set forth in this statute, the Plaintiff may file the Amended Complaint without further hearing or Order of this Court.
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