13 Fla. L. Weekly Supp. 180a
Insurance — Personal injury protection — Demand letter — Where medical provider filed suit after effective date of statutory amendment requiring pre-suit demand letter but did not fulfill demand letter requirement, final summary judgment is entered in favor of insurer
SOUTH PALM ORTHOPEDICS as assignee of Ramona Thompson, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RJ. Case No. 502004SC009399XXXXMB. October 5, 2005. Sandra Bosso-Pardo, Judge. Counsel: Robert Stein, Deerfield Beach. Dena Sisk Foman, North Palm Beach.
FINAL SUMMARY JUDGMENT ORDER
THIS CAUSE having come before the court on Defendant’s Motion for Summary Judgment and the Court having heard argument and being otherwise advised in the premises, finds as follows:
1. There are no genuine issues of material fact.
2. The Plaintiff filed a lawsuit claiming that the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY (hereinafter “Progressive”) breached its contract by failing to pay 80% of reasonable billed charges pursuant to the Florida No Fault law and Florida Statutes 627.736. The Plaintiff filed its lawsuit on September 14, 2004.
Florida Statute 627.736 was amended in 2003 and added a provision requiring any plaintiff to send a 15-day Notice to the insurer of its intent to initiate litigation. (Florida Statute 627.736(11)) Prior to filing this lawsuit, there is no dispute that South Palm Orthopedic did not submit a demand to Progressive.
3. The notes for Florida Statute 627.736 are: “Laws 2003. C 2003 — 411 Section 16 provides:
Subsection (11) of Section 627.736 of the Florida Statutes, as amended, by this act, shall apply to actions filed on or after August 1, 2003.”
Plaintiff filed suit September 14, 2004. The application of the Statute is not retroactive. The Plaintiff had ample time to file the Notice of Intent between the time of the amendment in August 2003 and filing suit in September 2004.
Although the Plaintiff cites other county court opinions holding that the application of the Statute is retroactive, the decisions are not binding on this court and this Court declines to follow them. See Millennium Diagnostic Imaging Center, Inc. v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 80. See also Del Grosso Chiropractic, P.A. v. Progressive Southeastern Insurance Company, 12 Fla. L. Weekly Supp. 488. This Court finds that the statutory language in Florida Statute 627.736(11) is not ambiguous and sets forth a pre-suit demand requirement and this requirement was not followed.
The Court further finds that since subsection (11) applies to actions filed after August 1, 2003 and Plaintiff filed its action in September 2004, that the application of the Statute is not retroactive. Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
Final Summary Judgment is entered in favor of Defendant, Progressive Express Insurance Company and Plaintiff shall take nothing from this action and Progressive Express Insurance Company shall go hence without day. This Court will retain jurisdiction for the purpose of awarding attorney’s fees and costs, if applicable.
