13 Fla. L. Weekly Supp. 609b
Insurance — Personal injury protection — Demand letter — Insurer’s motion for summary judgment based on insured’s failure to furnish pre-suit demand letter to person designated by insurer to receive such notices is denied where question of material fact exists as to whether insured substantially complied with pre-suit requirement by sending demand letter to claims adjuster after adjuster failed to respond to insured’s repeated attempts to obtain name and address of designated demand letter recipient
RONALD ROLLINS, Plaintiff, v. SOUTHERN GROUP INDEMNITY, INC., Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 53-2003-CC-005256-0000-00. August 31, 2005. Steven Selph, Judge. Counsel: Gale Young, Tampa. Russel Lazega, Law Office of Russel Lazega, P.A., North Miami. Matthew Kaylor, Kaylor Law Group, Lakeland.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the court this 10th day of June, 2005 on Defendant, Southern Group Indemnity, Inc.’s Motion for Summary Judgment, and the court, being advised in the premises and having heard argument of counsel, hereby finds as follows:
Factual Background: This is a P.I.P. insurance case. Defendant alleges entitlement to final summary judgment claiming that the Plaintiff failed to comply with the requirements of Florida Statute s. 627.736(11) (2003) prior to filing suit. Specifically, Defendant alleges that the letter furnished by Plaintiff as Plaintiff’s “Notice of Intent to Initiate Litigation” was addressed to the claims adjuster, Maria Valdez, instead of the person designated by Defendant to receive such notices on behalf of the company — Mr. Mario Vivez and that this claims adjuster was employed by a separate adjusting company. Plaintiff, in response, filed an affidavit of the insured’s attorney, Matthew Kaylor, alleging that counsel made repeated attempts to obtain from the adjuster, Maria Valdez, the name and address of Defendant’s designated demand letter recipient, but upon receiving no response from Ms. Valdez, Plaintiff submitted the letter directly to her. The Plaintiff further argues that the Defendant waived its right to demand strict compliance with the pre-suit requirements by failing to provide in its correspondence to Plaintiff, the name and address of the person to whom the claimant should respond pursuant to Florida Statute s. 627.736(4)(b). There appears to be no dispute that the adjuster, Maria Valdez, received the letter. The central issue is: “Does a material fact question exists as to whether Plaintiff substantially complied with the requirements of Florida Statute s. 627.736(11) by furnishing the Letter to the adjuster, Maria Valdez, such that summary judgment should not be entered for Defendant?” The Court concludes that based upon the facts of this particular case, a genuine issue of material fact exists as to whether Plaintiff has substantially complied with the requirements of Florida Statute s. 627.736(11) and accordingly, Defendant’s Motion for Summary Judgment is denied without prejudice.
Legal Conclusions: No District Court of Appeal decision squarely addresses the issue of substantial compliance with pre-suit notice pursuant to Florida Statute s. 627.736(11). A number of conflicting county decisions have been presented by each side, but ultimately there is no binding precedent to guide this court.
Considering the arguments presented, as well as the case law and evidence submitted, the court in the instant case finds a disputed issue of material fact has been presented as to whether the Plaintiff has substantially complied with the requirements of F.S. s. 627.736(11) such that it may maintain an action for P.I.P. benefits.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is DENIED without prejudice.
