15 Fla. L. Weekly Supp. 831a
Insurance — Personal injury protection — Demand letter — Where medical provider failed to serve demand letter prior to filing suit, but corrected noncompliance by serving demand letter after suit commenced and amending complaint with leave of court when insurer ignored demand, motion for summary judgment is denied — Even if provider had not moved for leave to amend, insurer would only be entitled to order granting summary judgment with leave to amend because statute of limitations has not run
DYNAMIC MEDICAL SERVICES, INC., as assignee of Doralis Mesa, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-1201 CC 25 (1). May 27, 2008. Andrew S. Hague, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of General Counsel, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS ACTION came before the Court on the 12th day of May 2008 on Defendant’s motion for summary judgment; and upon hearing the arguments of counsel and reviewing pertinent case law, the Court makes the following findings of fact and law:
1. This is an action for declaratory relief pursuant to the Florida Declaratory Judgment Act., Ch. 86, Florida Statutes, et seq.
2. At all times material, Defendant, United Auto. Ins. Co., and Doralis Mesa, entered into a contract of insurance for no fault insurance benefits.
3. A covered loss is defined by the policy in part as medical expenses for medical, chiropractic, rehabilitative care or diagnostic services that are medically necessary and related to a motor vehicle accident.
4. Defendant agreed to reimburse eighty percent of the reasonable amount of same.
5. The claimant, Doralis Mesa, was involved in a motor vehicle accident on or about September 15th, 2005 in the State of Florida; whereby the claimant suffered personal injuries.
6. The claimant began a course of chiropractic and rehabilitative treatment with the Plaintiff.
7. The claimant incurred medical expenses for services rendered by Plaintiff, which were submitted to Defendant for reimbursement of no fault insurance benefits under said policy.
8. Defendant, however, refused to pay the claim on the grounds that the bills were not reasonable, related or necessary.
9. Plaintiff filed a complaint for declaratory relief on January 23rd 2006 praying for a judgment declaring that the subject bills constitute a covered loss under the policy in that they are reasonable, related and necessary; and that Defendant is liable on the policy to the Plaintiff for eighty percent of the reasonable amount of same.
10. Plaintiff, however, did not serve a demand letter pursuant to § 627.736(11), Florida Statutes, (2003) before suit commenced.
11. During the pendency of litigation, Plaintiff’s counsel served a demand letter by certified mail to Defendant on October 16th, 2006. Defendant received said demand on October 19th, 2006. Defendant, however, refused to pay the claim in response to the demand.1
12. Plaintiff moved for leave to amend the complaint after Defendant ignored the demand letter.
13. Plaintiff’s motion for leave to amend was heard on March 5th, 2007.
14. The proposed amended complaint alleged with specificity that Defendant was served with a demand letter on or about October 16th, 2006; and that Defendant ignored the demand.
15. The Court, after hearing arguments from counsel, granted Plaintiff’s motion for leave to amend on March 5th, 2007; and ordered Defendant to respond to Plaintiff’s amended complaint.
16. Defendant filed an answer to the amended complaint alleging as an affirmative defense that Plaintiff did not comply with the pre-suit notice requirements under § 627.736(11), Florida Statutes, (2003).
17. Defendant now moves for summary judgment and asserts it is entitled to a final summary judgment on the merits because Plaintiff did not serve a pre-suit demand before the original complaint in this case was filed.
ANALYSIS OF LAW
18. The question before the Court is whether summary judgment dismissing Plaintiff’s amended complaint without leave to amend is proper where Plaintiff served a demand letter after suit commenced; and where Plaintiff amended the complaint by leave of Court after Defendant refused to pay in response to the demand.
19. The Court finds that in this case, an outright dismissal is inappropriate because Plaintiff corrected the statutory non compliance before Defendant moved for a dismissal by way of summary judgment.
20. There is no doubt that the requirements under § 627.736(11), Florida Statutes, (2003) is a condition precedent to suit. The case law, however, holds that a failure to comply with a statutory pre-notice requirement is not necessarily fatal. The law provides that where there is a failure to comply with a statutory pre-suit notice requirement and the statute of limitations has not run, the proper remedy is to dismiss the action with leave to amend; thereby allowing a plaintiff to comply with the statutory prerequisite and serve an amended complaint thereafter; but where the statute of limitations, on the other hand, has expired, the action must be dismissed with prejudice. See Hosp. Corp. of America v. Lindberg, 571 So.2d 446 (Fla. 1990), Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979); City of Coconut Creek v. Deerfield Beach, 840 So.2d 389 (Fla. 4th DCA 2003); Holding Electric Inc. v. Roberts, 530 So.2d 301 (Fla. 1988).
21. In this case, however, even a dismissal with leave to amend is unwarranted and unnecessary because Plaintiff corrected the non compliance by serving the demand letter after suit commenced; and amended the complaint by leave of Court after Defendant ignored the demand. Thus, the amended compliant, as it stands, is valid and cannot be dismissed for failure to comply with § 627.736(11), Florida Statutes, (2003). Assuming arguendo that Plaintiff did not move for leave to amend, Defendant would be entitled to an order granting summary judgment with leave to amend, but not an outright dismissal because the statute of limitations has not run. See id.
22. Further, the purpose of § 627.736(11), Florida Statutes, (2003) has been honored even though the demand was served after suit commenced. Assuming Defendant, for example, paid in response to the demand, Plaintiff would take nothing from this action; and nor would such a payment be a confession of judgment because the demand letter compelled Defendant to pay, not the lawsuit. For purposes of determining whether payment is a confession of judgment, it must be clear that it was the lawsuit that compelled the insurer to pay. See e.g., State Farm Florida Ins. Co., v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007) (Post suit payment of insured’s home owner’s claim not a confession of judgment where lawsuit did not compel payment; but instead, payment was tendered by the insurer pursuant to the insurer’s pre-suit agreement to pay the remainder of the claim upon receipt of general contractor’s permit.)
ACCORDINGLY it is hereby ORDERED & ADJUDGED that Defendant’s motion for summary judgment on demand letter is DENIED.
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1Defendant was served with another demand letter for the bills at issue from attorney Robert Gardana, Esq., on or about August 8th, 2006. Attorney Gardana filed a separate suit, Dade Cty. Ct. Case No.: 06-14975 CC (05), on behalf of Plaintiff after Defendant refused to pay the demand; that suit however, was voluntarily dismissed because the present suit was already pending in this Court.
