15 Fla. L. Weekly Supp. 1029a
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter that did not provide amount of postage medical provider now claims in complaint and requested amount not due at time letter was served failed to satisfy condition precedent to PIP action — Insurer’s motion for final summary judgment is granted
GARY R. BORAKS, LLC, As assignee of Jean R. Louis, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 07-SC-001057. February 25, 2008. Donald L. Marblestone, Judge. Counsel: Valencia Percy Flakes, Masten, Lyerly, Peterson, Denbo & Gobel, LLC, Maitland. Michael Tierney, Winter Park.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came on before the Court at January 22, 2008, on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised in the premises, hereby finds as follows:
1. On or about March 12, 2007, Plaintiff filed this action against State Farm seeking to recover the cost of “postage” pursuant to a policy of personal injury protection benefits for chiropractic treatment Plaintiff allegedly provided to Jean R. Louis.
2. As a condition precedent to instituting this lawsuit, the Plaintiff was required to submit a presuit demand letter in accordance with section 627.736(11), Florida Statutes. Specifically, section 627.736(11) requires that the Plaintiff provide Defendant with the exact amount the Plaintiff believes he is entitled. See Fla. Stat. §627.736(11) before the Plaintiff is permitted to file a lawsuit.
3. Contrary to the statute, the Plaintiff’s pre-suit demand letter failed to satisfy the condition precedent to bringing this lawsuit in that it did not provide the amount of postage to which the Plaintiff now contends he is owed. In addition, the demand letter requested $1,957.00 an amount that was not due at the time the demand letter was served. Importantly, at no time before instituting the present action did the Plaintiff serve a pre-suit demand letter requesting $5.12, the amount demanded in its Complaint for postage.
4. This failure directly contravenes the statute and renders the Plaintiff’s demand letter invalid. It should also be noted that in response to the demand letter State Farm advised Plaintiff that they would pay the amount of the postage and requested the exact amount. Plaintiff refused to provide the amount but instead filed the subject lawsuit.
5. The evidence is undisputed in this case that the demand letter failed to comply with Florida Statute 627.736(11). See Order on Final Summary Judgment in favor of Defendant (Mark T. Machuga, D.C., P.A. v. State Farm Insurance Company) Case No.: 05-SC002074, (18th Jud. Cir., The Honorable Judge Marblestone August 16, 2007) (holding demand letter that did not specifically request interest but requested an amount that was not due was invalid); Florida Emergency Physicians Kang & Associates, MD, PA, v. Progressive Casualty Ins. Co., 13 Fla. L. Weekly Supp. 511 b (Fla. 18th Jud. Cir. 2006) (demand letter which specifies full amount of charges and not that demand was for interest only, fails to place the Defendant on notice as to what was at issue); Florida Emergency Physicians Kang & Associates, M.D., P.A., v. Progressive Casualty Ins. Co., 13 Fla. L. Weekly Supp. 391a (Fla. 18th Jud. Cir. 2005) (same); Chiro-Medical Rehabilitation of Orlando, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 162b (Fla. 17th Jud. Cir. 2004) (demand letter fails to comport with material requirements of statute when it fails to provide accurate total amount claimed to be due).
6. The Plaintiff’s demand letter did not enable State Farm to accurately determine how much postage Plaintiff was seeking and to pay that amount in order to avoid litigation. Further, the Plaintiff s demand for State Farm to pay the entire amount of $1,957.00 which was incorrect and not due as revealed by the record evidence, along with an unspecified claim for postage, did not satisfy the plain language or the intent of § 627.736(11), Florida Statutes, which requires a potential Plaintiff to specifically identify its claim and allow an insurer the opportunity to avoid litigation. See Hernandez v. Progressive, 14 Fla. L. Weekly Supp. 232c (11th Jud. Cir. (Appellate) 2007); Chambers Medical Group, Inc. v. Progressive Express, 14 Fla. L. Weekly Supp. 207a (13th Jud. Cir. (Appellate) 2006).
7. Based on the foregoing, the Plaintiff’s demand letter fails to meet the conditions precedent to instituting this action and Defendant is entitled to judgment as a matter of law.
Based on the foregoing findings of fact and conclusions of law, it is hereby
ORDERED and ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and against DR. GARY BORAKS. Plaintiff shall take nothing by this action, and State Farm shall go hence without day.
2. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm and against Plaintiff, including jurisdiction to determine the issue of entitlement and the amount of such attorneys’ fees.
