13 Fla. L. Weekly Supp. 88a
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter that states it is demand letter under section 627.736 but fails to specify subsection (11) and which was not sent to person and address specified by insurer to receive notice on behalf of insurer does not meet statutory requirements — Argument that insurer can never change person designated to receive notice or that insurer is required to notify counsel when name of person is changed is rejected
S.M.S., D.O., d/b/a GULF COAST MEDICAL, o/b/o Sonia Niemuth, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, a foreign corporation duly authorized to transact business in the State of Florida, c/o the Department of Insurance, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2005SC-000490-WS, Section S. October 18, 2005. Debra Roberts, Judge. Counsel: Amy G. Cohen. Gale L. Young, Gale L. Young, P.A., Tampa.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The Defendant, Progressive Express Insurance Company (Progressive), moves pursuant to Rule 1.510 Fla. R. Civ. Proc., for summary judgment because there is no genuine issue of material fact and Defendant is entitled to summary judgment as a matter of law. Progressive argues the Plaintiff has failed to meet the condition precedent to filing this action for the following two reasons: (a) the demand letter does not state that it is a “demand letter under s. 627.736(11)”; and (b) the notice was not sent to the person specified by the insurer for the purposes of receiving such notice.
This Court, having reviewed the demand letter, having considered the arguments of counsel and otherwise being fully advised in the premises, grants the Defendant’s Motion for Summary Judgment.
1. On or about March 4, 2005, Defendant was served with Plaintiff’s Complaint by certified mail from the Insurance Commissioner, alleging a breach of contract relating to a policy of insurance that provided benefits to Plaintiff for alleged injuries arising out of an accident that occurred on December 15, 2004.
2. Progressive insured Dave Niemuth under a policy of insurance that provided PIP coverage to Sonia Niemuth for reasonable and necessary expenses related to an automobile accident, up to the coverage limit of $10,000 in personal injury protection benefits.
3. The letter provides “DEMAND LETTER UNDER FLORIDA STATUTES 627.736 ”.
4. The Notice, dated January 31, 2005, was sent to Tara Feeney. The person designated to receive demand letters directed to Progressive at that time was Doug Helton and not Tara Feeney.
Section 627.736(11) provides in pertinent part:
(11) DEMAND LETTER. —
(a) 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. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
. . .
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; . . .. . .
(c) . . . Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation of the name and address of the person to whom notices pursuant to this subsection shall be sent which the office shall make available on its Internet website. The name and address on file with the office pursuant to s. 624.422 shall be deemed the authorized representative to accept notice pursuant to this subsection in the event no other designation has been made.
Section 627.736(11), Florida Statutes, is specific in requiring the claimant, prior to filing any lawsuit for benefits, to provide the insurer with a demand letter that meets the requirements of the subsection. The Court finds that the demand letter in this case does not meet those requirements. This Court must enforce the clear and unambiguous language of the statute.
The Court further finds the demand letter in this case was not sent to the person and address specified by the insurer to receive notice on behalf of the insurer. The Court rejects Plaintiff’s argument that the name of the designated person can never change under the statute. Nor is there any requirement that the insurer notify counsel when the name of the designated person is changed. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is granted. The Court reserves jurisdiction as to Defendant’s Motion to Tax Attorney’s Fees and Costs.
