15 Fla. L. Weekly Supp. 620a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 920b
Insurance — Personal injury protection — Complaint — Premature — Demand for mediation — Statute which provides that filing of demand for mediation tolls requirements for filing suit for 60 days applies to first-party PIP claims
FRIEDMAN CHIROPRACTIC CENTER, P.A., a/a/o REUNER SUAREZ, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-00335 SP 26 (04). March 26, 2008. Gloria Gonzalez-Meyer, Judge. Counsel: C.J. Hudson, United Auto Insurance Company, Coral Gables.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S SIXTH AFFIRMATIVE DEFENSE
THIS CAUSE came before the Court on the 11th day of March, 2008 on Plaintiff’s Motion to Strike Defendant’s Sixth Affirmative Defense and after hearing argument from counsel,
It is ORDERED AND ADJUDGED
1. The Plaintiff’s Motion to Strike Defendant’s Sixth Affirmative Defense is denied. Defendant’s Sixth Affirmative Defense states “Plaintiff has failed to meet all conditions precedent prior to filing of the lawsuit in that Plaintiff has failed to comply with F.S. 627.745, and Defendant insurance policy provision section # 13 that addresses Mediation of Claims. Per the F.S. 627.745, the filing of a request for mediation tolls the applicable requirements for filing suit for a period of 60 days following the conclusion of the mediation process or the time prescribed in statute 95.11, whichever is later. Defendant states that a request for mediation was made with the Department of Financial Services pursuant to the F.S. 627.745, and pursuant to the insurance policy general provision section that governs the Mediation of Claims # 13. Thus, the Plaintiff has filed suit prematurely in violation of these provisions and 60 day tolling period.
2. Florida Statute 627.745(1)(a) states:
In any claim with an insurer for personal injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle, either party may demand mediation of the claim prior to the institution of litigation.
3. The Court finds that Florida Statute 627.745 Mediation of Claims does apply to PIP cases. The Plaintiff argues that the Statute in question only applies to third party personal injury claims, Uninsured Motorist claims, and property damage claims. Specifically, the amendment notes state:
c. With regard to first party claims, the terms and conditions for mediation of a claim shall be specified in detail in the policy contract.
The amendment notes do not limit the Statute to either third party claim or Uninsured Motorist claim, instead it includes first party claims and explains that the terms and conditions shall be specified in the insurance contract.
4. Thus, the Statute does include PIP claims. Moreover, the First District Court of Appeals stated in dicta in a PIP case that:
Nor can the petition for declaratory statement be deemed a demand for mediation under departmental auspices. See 627.745, Fla. Stat. (2001); Fla. Admin. Code R. 4-176.022. In any event, the deadline for such a demand was long past by the time Mr. Padilla filed his petition for declaratory statement. See section 627.745(1)(a), Fla. Stat. (2001) (“either party may demand mediation of the claim prior to the institution of litigation.”)
Thus, the First District Court of Appeals finds that Florida Statute 627.745 applies to PIP claims like the case at bar.
