13 Fla. L. Weekly Supp. 155b
Insurance — Personal injury protection — Demand letter — Plaintiff could not rely on demand letters filed by billing service company on behalf of former assignee to satisfy statutory requirement that he provide insurer with written notice of intent to initiate litigation — Having failed to meet condition precedent to suit, plaintiff cannot bring this action
CHARLES GRIFFIN, Plaintiff, v. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2005-SC-002674, Division N. October 3, 2005. Gary P. Flower, Judge. Counsel: Kelly B. Hampton, Gallagher Law Firm, Jacksonville, for Plaintiff. Christopher K. Leifer, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
THIS CAUSE, having come before me on Defendant’s Motion for Summary Disposition, and it appearing that good and sufficient grounds were shown for Granting the Motion, and otherwise being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that the Court makes the following findings:
1. On or about April 12, 2005, Plaintiff filed the case sub judice, alleging non-payment of No-Fault benefits.
2. On or about May 16, 2005, Plaintiff filed its First Amended Complaint, alleging additional, alleged non-payments of No-Fault benefits.
3. FLORIDA STATUTE § 627.736(11)(a) 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” (a/k/a ‘15 day demand letter’).
4. Plaintiff alleged, in Paragraph 9 of the Complaint and Paragraph 10 of the Amended Complaint, that he performed all conditions precedent to entitle Plaintiff to recover benefits, “including sending a 15 day demand letter.”
5. Plaintiff attached one 15 day demand letter to his Complaint a second 15 day demand letter to his Amended Complaint.
6. The first demand letter was sent to Defendant, by Medical Billing Services, Inc., on behalf of Northeast Florida Neurology Clinics, on February 16, 2005. The demand letter included an ‘Assignment of Benefits’ from Plaintiff to Northeast Florida Neurology Clinics.
7. On April 4, 2005, Plaintiff and Northeast Florida Neurology Clinics executed a Mutual Revocation of Assignment.
8. The second demand letter was sent to Defendant, by Medical Billing Services, Inc., on behalf of Northeast Florida Neurology Clinics, on April 15, 2005. The demand letter again included an ‘Assignment of Benefits’ from Plaintiff to Northeast Florida Neurology Clinics; which was invalid due to the Mutual Revocation.
9. It was not disputed that Plaintiff, Charles Griffin, never submitted his own 15 day demand letter to Defendant, but instead relied on the demand letters submitted by Medical Billing Services, Inc., on behalf of Northeast Florida Neurology Clinics.
10. The Defendant argued 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.” Stretton v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 369b (Fla. Orange Cty. Ct. Dec. 22, 2004).
11. The Plaintiff argued that “it is irrelevant who sends the fifteen day demand letter,” citing an unpublished order in Northeast Florida Neurology Clinics (a/a/o Brad Crow) v. Progressive Express Ins. Co., case no. 2005-SC-3634 (Fla. Duval Cty. Ct. Aug. 26, 2005) [12 Fla. L. Weekly Supp. 1069b].
12. This Court disagrees with Plaintiff’s argument, and the Order cited by Plaintiff, as it would lead to the absurd result that anyone, regardless of whether they have a right to make a claim for PIP benefits or not, could submit a demand letter to an insurance company. In such a case, as is the case here, the insurance company could be liable, to the party who has the right to make that claim, for dispensing PIP benefits to an improper party. FLORIDA STATUTE § 627.736(11) cannot be interpreted that way. Drury v. Harding, 461 So.2d 104 (Fla. 1984).
13. Plaintiff never provided Defendant with a 15 day demand letter and; therefore, Plaintiff has not provided Defendant ‘written notice of an intent to initiate litigation’ as required by FLORIDA STATUTE §627.736(11)(a).
14. There remain no genuine issues as to any triable facts. Plaintiff failed to provide Defendant with ‘written notice of an intent to initiate litigation,’ and he has failed to meet the conditions precedent, as required by FLORIDA STATUTE §627.736(11), and Plaintiff cannot, therefore, bring this action.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, CHARLES GRIFFIN, take nothing by this action and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
