15 Fla. L. Weekly Supp. 99a
Insurance — Personal injury protection — Demand letter that includes sums already paid by insurer is not legally sufficient
DR. DAVID S. MURANSKY, P.A. (a/a/o Carolina Trujillo), Plaintiff, vs. STATE FARM MUTUAL INSURANCE COMPANY, Defendant.County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-5862 COCE (53). October 26, 2007. Robert W. Lee, Judge. Counsel: Sisy Mukerjee, Law Offices of Justin G. Morgan, P.A., Weston, for Plaintiff. David Hwalek, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT, WITH ORDER OF DISMISSAL
THIS CAUSE came before the Court on October 25, 2007 for hearing of the Defendant’s Amended Motion for Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background. On September 28, 2007, the Defendant served its Amended Motion for Summary Judgment, the gist of which is the failure of the Plaintiff to serve a legally sufficient presuit demand letter under Florida Statute §627.736(11). The Court set the matter for hearing for October 25, 2007. Prior to the hearing, the Plaintiff served timely affidavits in an effort to contravene the Defendant’s Motion. The undisputed evidence addressed at the hearing indicated that the Plaintiff mailed its demand letter on March 14, 2007. The amount in the demand letter, however, included a material amount that had already been paid by State Farm and had been accepted by the Plaintiff. As a result, the Plaintiff’s demand letter purported to request the same sum again from the Defendant.
Conclusions of Law. It is undisputed that the Plaintiff sent a demand letter that included sums that were already paid by State Farm and accepted by the Plaintiff. Clearly then, the demand letter did not comply with the requirements of the Florida Statutes, which mandates that a demand letter include the “exact amount [. . .] claimed due.” The Court agrees with the reasoning of the Honorable Lisa Trachman in Sun Coast Health Care Center #1, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 803 (Broward Cty Ct. 2005). When an insurer makes a partial payment on a claim, which is accepted by the claimant, the claimant cannot then include the amount paid as part of the “exact amount [. . .] claimed due” in the demand letter. See also Chambers Medical Group, Inc. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207 (13th Cir. Ct. 2007); Florida Emergency Physicians Kang & Associates, M.D., P.A. v. Progressive Casualty Ins. Co., 13 Fla. L. Weekly Supp. 511 (Seminole Cty. Ct. 2006); Indian Rocks Chiropractic, Inc. v. State Farm Fire & Casualty Co., 13 Fla. L. Weekly Supp. 608 (Pinellas Cty. Ct. 2006). Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. This case is DISMISSED.
