12 Fla. L. Weekly Supp. 770b
Insurance — Personal injury protection — Demand letter — Presuit demand letter lacks specificity required by statute — Action is abated to allow medical provider to cure insufficiencies
PONTE VEDRA CHIROPRACTIC MEDICINE & P.T., INC., (As Assignee of ALIYA RYABOV), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP03-2565. Division 65 (CHR). April 26, 2005. Patti A. Christensen, Judge. Counsel: James J. Woodruff, II, Farah, Farah & Abbott, P.A., Jacksonville, for Plaintiff. Jason C. Taylor, McFarlain & Cassedy, P.A., Tallahassee, for Defendant.
ORDER SETTING A SIDE ORDER OF DISMISSAL
The court upon its own motion, hereby sets aside Order of Dismissal entered July 8, 2004, and substitutes this order in lieu thereof. Similar cases have come before the court wherein the Defendant has raised as an affirmative defense failure of the Plaintiff to fulfill a condition precedent required by § 627.736(11)(a), F.S. Prior to initiating a claim for PIP benefits the Plaintiff must provide the insurer with a written notice that states with specificity the amount claimed, the date of treatment, and the type of benefit claimed to be due. §627.736(11)(b), F.S. In other cases where the court has found the pre-litigation notice to be insufficient, the court has abated the action to allow the Plaintiff to cure the insufficiencies. The court is of the opinion that abatement of the action is the better practice, rather than dismissal.
The pre-litigation notice provided by Plaintiff in this action is insufficient because it lacks the specificity required by §627.736(11)(b), F.S. Upon consideration thereof, it is
ORDERED:
1. The Order of Dismissal entered July 8, 2004 is hereby set aside.
2. This action shall be abated until Plaintiff satisfies the condition precedent by providing Defendant with a written Notice of Intent to litigate, making its claim with the specificity required by law. Defendant shall respond within the time required by law, and such response shall be without prejudice to either party as it relates to other issues raised in this lawsuit. If Plaintiff fails to provide Defendant with such written notice within thirty (30) days from the date hereof, Defendant may petition the court to set aside the abatement and proceed on its Motion for Summary Judgment.
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