12 Fla. L. Weekly Supp. 369b
Insurance — Personal injury protection — Demand letter — PIP action brought by insured after medical provider reassigned all of insured’s PIP benefits back to her — Pre-suit demand letter filed by medical provider failed to satisfy condition precedent to insured filing suit — Summary judgment granted in favor of insurer
SHARON STRETTON, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 04-CC-276. December 22, 2004. C. Jeffery Arnold, Judge. Counsel: Gray M. Camfield, Palm Bay. Sandra Kotur, Adams, Blackwell & Diaco, P.A., Orlando.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS CAUSE having come before the Court on November 16, 2004 on Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Motion for Summary Final Judgment and Motion for Protective Order, and this Court having heard argument of counsel, and reviewed the applicable case law and court file and being otherwise duly advised in the premises, the Court hereby makes the following findings of fact:
1. Plaintiff filed a PIP suit against Defendant for unpaid and/or reduced medical bills for treatment received from Physicians Injury Care Center as a result of injuries she allegedly sustained in an automobile accident which occurred on December 4, 2002.
2. Plaintiff, Sharon Stretton, was insured under a PIP policy of insurance issued by the Defendant to Dawn Kling. This policy was in full force and effect on the date of the alleged accident and it had $10,000 in PIP benefits with no deductible and no Med Pay coverage.
3. The policy provided PIP benefits in accordance with the requirements of §627.736 Florida Statutes.
4. PROGRESSIVE provided personal injury protection benefits to the Plaintiff for treatment received from various medical providers, including Physicians Injury Care Center.
5. On January 8, 2003, Plaintiff executed an Assignment of Benefits in favor of Physicians Injury Care Center, effectively transferring all of her rights and benefits under the PIP policy of insurance. A copy of the Assignment was attached to the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order as Exhibit “A”.
6. On October 29, 2003, Irving Colvin, M.D., on behalf of Physicians Injury Care Center, reassigned all of Sharon Stretton’s PIP benefits back to her. A copy of the Reassignment of Benefits was attached to the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order as Exhibit “B”.
7. On December 16, 2003, Plaintiff, Sharon Stretton, executed yet another document entitled “Direct Payment Authorization Without Assignment of Benefits and/or Revocation of Assignment.” A copy of this document was attached to the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order as Exhibit “C”.
8. The instant lawsuit was filed on or about January 13, 2004.
9. On February 18, 2004, Defendant filed a Motion to Dismiss and/or Motion for More Definite Statement alleging that the complaint was vague, ambiguous and not specific as to the issues.
10. On May 10, 2004 the Court entertained argument on the Defendant’s Motion to Dismiss and/or Motion for More Definite Statement and granted the Motion for More Definite Statement. Pursuant to the Court’s Order, on May 13, 2004, Plaintiff filed her More Definite Statement alleging that only Physicians Injury Care Center bills for dates of service between February 21, 2003 and April 16, 2003 were at issue in this PIP suit.
11. §627.736(11)(a), Fla. Stat. (2003) mandates that “[a]s 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.” (emphasis added).
12. Attached to Plaintiff’s complaint as Exhibit “B” were two demand letters on Physicians Injury Care Center letterhead, submitted to Progressive by Robert Colvin, of Physicians Injury Care Center, for treatment rendered to Plaintiff, Sharon Stretton.
13. The first Demand Letter is dated September 30, 2003 and it alleges that dates of service February 21, 2003 through March 24, 2003 are at issue. A copy of this letter was attached to the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order as Exhibit “D”.
14. The second Demand Letter is dated October 3, 2003 and it alleges that dates of service March 26, 2003 through April 16, 2003 are at issue. A copy of this letter was attached to the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order as Exhibit “E”.
15. Plaintiff admitted in Request for Admission number one of Defendant’s Request for Admissions to Plaintiff that Sharon Stretton did not send Defendant a Presuit Demand Letter for the Physicians Injury Care Center bills at issue in this suit prior to filing this suit.
16. When the language of the statute is clear and unambiguous, and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. State of Florida v. Warren, 796 So. 2d 489 (Fla. 2001). If the intent is clear from the content of the statute, the Court’s function is to interpret the act so as to effectuate that intent if the Court can do so by the application of acceptable rules of statutory construction. Armstrong v. City of Edgewater, 157 So.2d 422 (Fla. 1963). The Court finds that the legislature requires the claimant who is going to file suit, to be the one to file the Presuit demand letter prior to bringing the action. Since Sharon Stretton is the Plaintiff, and she failed to serve the Presuit Demand letter, she has failed to comply with the §627.736(11), statutory condition precedent.
After hearing argument of counsel, and after review of the entire court file, and case law, and based upon the foregoing findings, it appears no genuine issues of material fact exists and the Defendant is entitled to Final Summary Judgment as a matter of law, it is hereby,
ORDERED AND ADJUDGED that:
Defendant’s Motion for Summary Final Judgment be, and hereby is, GRANTED. PLAINTIFF, SHARON STRETTON, shall take nothing from its Complaint and that Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence without day.
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