14 Fla. L. Weekly Supp. 298b
Insurance — Personal injury protection — Demand letter — No merit to insurer’s argument that it is entitled to summary judgment because demand letter was mailed by medical provider but did not have assignment of benefits attached where plaintiff is insured, and insured did not assign benefits to provider
BRIAN D. ROSS, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit IN AND FOR PALM BEACH COUNTY. Case No. 502006SC000554XXXXMB, Division: RL. January 22, 2007. Janise B. Keyser, Judge. Counsel: Russell M. Thompson, Law Offices of Russell M. Thompson, Sunrise, for Plaintiff. Dena Sisk Foman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER, having come before the Court upon the Defendant’s Motion for Summary Judgment and this Court having heard argument of counsel, considered the record, and being otherwise fully advised in this matter, makes the following findings of fact and law:FINDINGS OF FACT
1. The Plaintiff, BRIAN D. ROSS, is the claimant and was insured by the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, at all time material to his automobile accident of September 20, 2005.
2. As a result of injuries sustained in said accident, Mr. Ross underwent medical treatment at Injury Treatment Center of South Florida Inc. d/b/a/ Choice Medical Centers (his medical provider).
3. The Plaintiff did not assign his benefits under the insurance policy.
4. Defendant received a pre-suit demand dated November 29, 2005, which was signed by the Plaintiff (the claimant in this cause) and mailed on the Plaintiff’s behalf by Plaintiff’s medical provider.
5. On January 17, 2006, the Plaintiff filed suit against the Defendant seeking payment of benefits pursuant to Florida Statute §627.736, the “Florida Motor Vehicle No-Fault Law”.
6. The Defendant now moves for Summary Judgment arguing that because the pre-suit demand was mailed by a medical provider and did not have an assignment of benefits attached thereto it is non-compliant under Florida Statute §627.736 (11)(b).
7. The Plaintiff contends that the only requirement of Florida Statute §627.736(11)(a) is that the insurer be provided with a written notice of intent to initiate litigation that is otherwise compliant with §627.736(11)(b).
CONCLUSIONS OF LAW
8. After argument of counsel and a review of Florida law and the cases submitted for consideration, this Court agrees with Plaintiff that Defendant is not entitled to Summary Judgment as a matter of law.
9. Florida Statute §627.736 states in relevant parts as follows: at §627.736 (11)(a)“As a condition precedent to filing any action for benefits under this section, the insurer must be provided with a written notice of an intent to initiate litigation.” and at §627.736(11) (c)“Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested.” It does not require that any particular party supply such written notice, but only that the insured be provided one so as to put it on notice.
10. “Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2002); Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000). The phrase“must be provided”suggests the legislature’s intent was that the only requirement of §627.736(11)(a) is that an insurer be provided written notice. This Court does not read subsection (11)(a) as a requirement that the Plaintiff must be the one to mail the pre-suit demand, so long as Defendant was provided with a pre-suit demand and was on notice of Plaintiff’s intention to initiate litigation.
11. When the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. State of Florida v. Warren, 796 So. 2d 489 (Fla. 2001). A strict reading of the statute requires only that the Defendant have been provided written notice, which in this case it was.
12. The two cases cited by the Defendant (Dr. Robert D. Simon, MD, PA (Napoleon Pham-Vo) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 347a, County Court, 15th Judicial Circuit, February 5, 2004 and Pearson Wellness Center Medical Corp., as assignee of Diane Meadows v. Nationwide Mutual Fire Insurance Company, 11 Fla. L. Weekly Supp. 1006a, County Court, 6th Judicial Circuit, August 11, 2004) for the proposition that an assignment of benefits should have been attached to the pre-suit demand can be distinguished. In each of those cases there was an assignment and the plaintiff/claimant was not the insured. In the instant case, the Plaintiff/claimant is the insured and he did not assign his benefits.
It is hereby,
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is DENIED.
