12 Fla. L. Weekly Supp. 669b
Insurance — Personal injury protection — Counterclaims — Motion to dismiss insurer’s counterclaims for failure to comply with statutory pre-suit requirements is denied — Motion to dismiss counterclaims of fraud and unjust enrichment is denied where insurer has stated cause of action and pled with specificity and clarity — Counterclaim for unlawfully providing service and false or misleading statement under criminal statute is dismissed — Motion to dismiss counterclaim for illegal kickback is denied where insurer has stated cause of action
JEAN P. FLORESTAL, L.M.T. & C.N.M.T., a/a/o Sally Harper, Plaintiff(s), vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2003-SC-8994-O. March 23, 2005. Nancy L. Clark, Judge. Counsel: Adam Ross Littman, Winter Park. Jason R. Urbanowicz, Maitland.
ORDER ON PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM
THIS MATTER came before the Court on Plaintiff, Jean P. Florestal, L.M.T. & C.N.M.T., a/a/o Sally Harper, Motion to Dismiss Counterclaim contained in Defendant’s amended answer. The Court having reviewed the motion, having heard arguments of counsel for Plaintiff and Defendant, and otherwise fully advised herein, find as follows:
1) Plaintiff’s Motion to Dismiss all Counterclaims as a result of Defendant’s failure to comply with the pre-suit requirements of F.S. 766 is DENIED.
2) As to Defendant’s Counterclaims of Fraud in Count I and III and Unjust Enrichment in Count II and IV, the Defendant has stated a cause of action and has pled with specificity and clarity. The Court DENIES Plaintiff’s Motion to Dismiss Counterclaim I, II, II, and IV.
3) As to Defendant’s Counterclaim Count V: Unlawfully Provided Service and False Misleading Statement FS 817.234 is a criminal statute. While it may be relevant to other issues regarding the matter, the pled allegations do not state a cause of action or counterclaim. Therefore, the Court GRANTS Plaintiff’s Motion to Dismiss, without prejudice, Counterclaim V.
4) As to Defendant’s Counterclaim in count VII (should be Defendant’s Counterclaim VI): Illegal Kickback. The Court finds the Defendant has stated a cause of action. Therefore, the Court DENIES Plaintiff’s Motion to Dismiss Counterclaim VII (should be Defendant’s Counterclaim VI).
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