12 Fla. L. Weekly Supp. 167a
Insurance — Personal injury protection — Complaint — Sufficiency — Statute that requires demand letter as condition precedent to filing PIP suit does not require that letter and its attachments be attached to complaint
SOUTH FLORIDA PAIN AND REHABILITATION, P.A., a Florida Corporation (assignee of Desmarattes, Wilner), Plaintiff, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-03441 COSO 60. November 15, 2004. Sharon Zeller, Judge. Counsel: Russel Lazega, The Law Office of Russel Lazega, North Miami. Matt Hellman.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This action was heard on Defendant’s Motion to Dismiss alleging that Plaintiff was required to allege and attach to its complaint the pre-suit demand letter showing proof of compliance with Florida Statute section 627.736(11). The court having heard argument of counsel and considered the matter hereby orders as follows:
Factual Background
This is a P.I.P. case. Defendant has moved to dismiss the Plaintiff’s complaint with prejudice alleging that the Plaintiff failed to plead and attach to its complaint proof of compliance with Florida Statute s. 627.736(11) (the pre-suit demand letter provision of the P.I.P. statute). The court finds no such requirement exists and holds:
Conclusions of Law
Florida Statute s. 627.736(11) requires that 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.” which requires only that the claimant identify in the demand: 1) that it is a “demand letter under s. 627.736(11)”; 2) the insured upon which such benefits are being sought; 3) the claim or policy number; and 4) “to the extent applicable” the claimant should attach to the demand letter an itemized statement (ledger) of the providers’ charges and an assignment of benefits (if the claimant is not the insured). Florida Statute s. 627.736(11) does not require that the said demand letter and attachments be attached to the complaint.
Accordingly, IT IS ORDERED that
1. Defendant’s Motion to Dismiss the Complaint is Denied. Defendant shall respond to Plaintiff’s Complaint within 20 days of this order.
* * *
