12 Fla. L. Weekly Supp. 1072c
Insurance — Personal injury protection — Demand letter — Insured who failed to send demand letter before filing suit failed to satisfy condition precedent to filing suit, and deficiency was not cured by post-suit demand letter — No merit to claim that it was necessary to file suit prior to sending demand letter in order to toll statute of limitations where statute provides for tolling of statute of limitations for 15 business days from mailing of demand letter
EARL L. GRABOWSKI, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, a foreign corporation. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005-30159-COCI. August 25, 2005. Stasia Warren, Judge. Counsel: R. Neil Johnson, Johnson & Johnson, P.A., Daytona Beach, for Plaintiff. Julian Gonzalez, Tolgyesi, Katz, Hankin and Katz, P.A., Orlando, for Defendant.
ORDER DISMISSING THE PLAINTIFF’S COMPLAINT FOR FAILURE TO COMPLY WITH THE STATUTORY CONDITIONS PRECEDENT
THIS MATTER came on to be heard before the court upon Defendant’s Second Amended Motion to Dismiss for Failure to Comply with Statutory Condition Precedent and Motion to Dismiss for Failure to State a Cause of Action Within the Statutory Limitation of Time, and the court having reviewed the motion, the court file, heard argument of counsel, and being otherwise fully advised in the premises, finds as follows:
1. On or about January 13, 2000, the Plaintiff was allegedly injured while using the motor vehicle insured by Defendant Allstate.
2. On or about January 12, 2005, the Plaintiff filed the above captioned matter.
3. On or about May 10, 2005, the Plaintiff served the complaint in this matter to the Defendant.
4. On or about May 31, 2005, the Defendant filed a Motion to Dismiss complaint for failure to state a cause of action.
5. On or about June 3, 2005, the Defendant files an Amended Motion to Dismiss for failure to state a cause of action and for failure to comply with statutory condition precedent.
6. On or about June 2, 2005, the Plaintiff filed his initial application for PIP benefits to the Defendant, requesting payment for lost wages from January 13, 2000, through April 24, 2000.
7. On or about July 12, 2005, the Plaintiff sent the statutorily required pre-suit, 15-day, demand letter to the Defendant — which was delivered on July 14, 2005.
8. Florida Statutes section 627.736(11) provides 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 intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(e) The applicable statute of limitation for an action under this section shall be tolled for a period of 15 business days by the mailing of the notice required by this subsection.
9. The requirement of the pre-suit demand provision is in furtherance of the overall legislative goal of reducing the volume of lawsuits and to prevent “PIP insurance fraud and abuse and to curb escalating medical, legal, and other related costs. . .” SB-32-A1(2)(h).
LEGAL ANALYSIS
The Plaintiff argues that his case should not be dismissed for two reasons: 1) that the demand letter sent on July 12, 2005, cured the prior statutory deficiency, and 2) that the Plaintiff had to file suit prior to the Demand letter being sent to toll the running Statute of Limitations. However, the court is required to interpret a statute to give effect to its legislative intent. City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578 (Fla. 1984). The court finds that the clear, unambiguous language of the statute requires that the Plaintiff send a demand letter to the insurer prior to the initiation of a lawsuit. Therefore, the court does not find that the Plaintiff cured the deficiency by sending a demand letter to the insurer six months after filing his lawsuit. Additionally, Florida Statutes section 627.736(e) provides for a tolling of the Statute of Limitations of 15 business days from the mailing of the demand letter. Therefore, it appears that the legislature intended that a demand letter be sent prior to initiating a lawsuit even if the Statute of Limitations is about to toll. Had the Plaintiff mailed a demand letter to the insurer on January 12, 2005, instead of filing suit the Plaintiff would have been in compliance with the PIP statute and would have had the Statute of Limitations tolled for an adequate period of time without any detriment.
Accordingly, based upon the above findings, it is:
ORDERED AND ADJUDGED that the Plaintiff’s Complaint is DISMISSED.
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