15 Fla. L. Weekly Supp. 1153a
Insurance — Personal injury protection — Standing — Failure to comply with condition precedent — Demand letter — Final summary judgment in favor of insurer finding insured lacked standing in action for bills incurred with two medical providers because demand letters were filed by providers after they had revoked assignments of benefits — Trial court erred in entering summary judgment concerning one provider’s bills where insured properly filed demand letter in own name for those bills before submitting second amended complaint — Further, where insured served demand letter for second provider’s bills at same time as second amended complaint, complaint should have been dismissed relative to those bills with leave to amend
JORGE L. SANCHEZ, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-115 AP. L.T. Case No. 04-2977 CC 24. October 23, 2008. On appeal from a decision by the County Court in and for Miami-Dade County. Counsel: Marlene S. Reiss, for Appellant. Edward Winitz, for Appellee.
(Before JERALD BAGLEY, JOHN SCHLESINGER, and BEATRICE BUTCHKO, JJ.)
[Editor’s note: County court order published at 14 Fla. L. Weekly Supp. 395b]
(PER CURIAM.) Plaintiff/appellant Jorge L. Sanchez was injured in an automobile accident on October 21, 2003. He was covered under a personal injury protection (PIP) policy issued on December 13, 2002 by defendant/appellee State Farm Mutual Automobile Insurance Co. (State Farm). Plaintiff originally assigned his benefits to Neurology Associates Group (NAG) on October 22, 2003 (R. at 78). NAG revoked its assignment of benefits on November 17, 2004 (R. at 79). On November 18, 2004 the plaintiff’s attorney furnished State Farm with a demand letter which indicated that the “medical provider (NAG) is herewith issuing a demand letter for the payment of medical services provided to the above named insured . . . .” (R. at 77.) The plaintiff filed his Complaint against State Farm on December 9, 2004, and included bills incurred by NAG (R. at 5).
Likewise, on January 12, 2005, another medical provider, Stand-Up MRI of Miami, P.A. (Stand-Up) revoked its assignment of benefits (R. at 83). On January 20, 2005 (R. at 81) and January 28, 2005 (R. at 82), Stand-Up submitted demand letters to State Farm. Plaintiff filed an Amended Complaint on March 8, 2005 and included those bills incurred by Stand-Up (R. at 31).
On March 23, 2005 plaintiff submitted a demand letter to State Farm in his name for bills incurred by NAG (R. at 80). The plaintiff never submitted a demand letter in his name to State Farm for those bills incurred by Stand-Up.
On May 10, 2006 the trial court granted plaintiff’s Second Motion to Amend Complaint (R. at 130).
On February 6, 2007 the trial court entered an Order Granting Defendant’s Motion for Final Summary Judgment and Entering Final Judgment in Favor of Defendant, State Farm Mutual Automobile Insurance Co., and Order Denying Plaintiff’s Motion for Partial Summary Judgment on Issue of Plaintiff’s Compliance [14 Fla. L. Weekly Supp. 395b] (R. at 148). The Order found that the Plaintiff “lacked standing to file his complaint against State Farm due to the Plaintiff’s failure to comply with F.S. 627.736(11).” The trial court found that the demand letters filed by NAG and Stand-Up were filed after they had revoked their benefits and assignments. Thus, the Complaint, Amended Complaint, and Second Amended Complaint were filed prematurely and failed to comply with the pre-suit demand letter statute, section 627.736(11), Florida Statutes (2003).
We find that the trial court erred when it granted summary judgment on behalf of appellee concerning the NAG bills and reverse this decision. Appellant properly filed a demand letter in his name for those bills before submitting his Second Amended Complaint. See Ingersol v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991) (an amended complaint is an avenue available to a plaintiff which will cure previous non-compliance with pre-suit compliance statutes).
Concerning the Stand-Up bills, we reverse the trial court’s decision with regard to the Second Amended Complaint, and remand with instructions to dismiss the action and allow appellant leave to amend. See Hospital Corp. of America v. Lindberg, 571 So. 2d 446, 449 (Fla. 1990) (“if a pre-suit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend.”).
Appellant’s motion for appellate attorney’s fees is granted.
