13 Fla. L. Weekly Supp. 344a
Insurance — Personal injury protection — Notice of loss given three and a half years after accident was not given as soon as practicable — Where insured failed to rebut presumption that insurer was prejudiced by failure to report accident in timely manner, insured’s claim and PIP suit cannot be maintained
MARILYN REESE, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2003-CC-016929, Division I. December 8, 2005. Pauline M. Drayton, Judge. Counsel: Kelly B. Hampton, The 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 JUDGMENT RE: UNTIMELY SUBMISSION OF A CLAIM
THIS CAUSE, having come before the court on Defendant’s Motion for Summary Judgment, 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 August 28, 1999, Plaintiff was involved in a motor vehicle accident.
2. Plaintiff’s policy of insurance states, in pertinent part:
YOUR DUTIES IN CASE OF AN ACCIDENT OR LOSS . . . Notice of Accident or Loss . . . If there is an accident or loss arising out of the ownership, maintenance or use of a vehicle, for which coverage may be provided under this policy, report it to us within twenty-four (24) hours or as soon as practicable . . . . (emphasis added).
3. The evidence showed that on March 27, 2003 (three years and seven months after the accident), Plaintiff made a claim for personal injury protection benefits under the aforementioned policy of insurance with Defendant. The evidence also showed that the claim number assigned to the claim was 03-0406383 and that the first two digits of Defendant’s claim numbers are determined by the year in which the claim is made (i.e. 2003).
4. The Plaintiff, insured, has a duty to give the Defendant timely notification of the accident “as soon as practicable” and this Court finds that reporting a motor vehicle accident greater than three year-and-a-half years after its occurrence is not “as soon as practicable.”
5. Because the motor vehicle accident was not reported in a timely fashion, as required by the insurance policy at issue, prejudice to the insurer is presumed and may be rebutted, by Plaintiff, by a showing that the insurer has not been prejudiced. Bankers Ins. Co. v. Macias, 475 So. 2d 1216, at 1218 (Fla. 1985) (citing National Gypsum Co. v. Traveler’s Indemnity Co., 417 So.2d 254 (Fla. 1982)).
6. Plaintiff failed to make a showing that the Defendant was not prejudiced; therefore, Plaintiff’s claim; as well as her lawsuit; cannot be maintained. Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985).
7. There remain no genuine issues as to any triable facts. Plaintiff failed to timely notify Defendant of the motor vehicle accident that is at issue in this lawsuit; therefore, Plaintiff has not satisfied conditions precedent to being entitled to personal injury protection benefits under the policy of insurance at issue.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, MARILYN REESE, 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.
