15 Fla. L. Weekly Supp. 61b
Insurance — Personal injury protection — Demand letter — Sufficiency — Where demand letter and attached itemization does not specifically state services rendered, exact amount owed or date of relevant treatment, and amount claimed exceeds unpaid balance shown on payment ledger, demand letter is not sufficient — Standing — Assignment — Insured who assigned benefits to medical provider and has not obtained revocation of assignment lacks standing — Assignment did not automatically revert back to insured when provider was paid in full
LINDA GORDON, Plaintiff(s), vs. PROGRESSIVE AMERICAN INSURANCE, Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 2007-CC-006435-XXXX, Division M. August 14, 2007. Kevin A. Blazs, Judge. Counsel: David A. Spain, Orlando, for Plaintiff. James B. Eubanks, Rinaman & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION REGARDINGN ON-COMPLIANT PRE-SUIT DEMAND
THIS CAUSE came on to be heard at the July 30, 2007 hearing on the Defendant’s Motion for Summary Disposition Regarding Non-Compliant Pre-Suit Demand and this Court, having heard argument of counsel and being otherwise fully advised of the premises therein, makes the following findings of fact and conclusions of law:
1. The Plaintiff’s April 26, 2007 Complaint alleges entitlement to unpaid PIP benefits. According to Exhibit “B”, the value of the foregoing benefits totals $113.80.
2. In response, the Defendant filed an answer and affirmative defenses on May 24, 2007. In paragraphs 16 & 18 of the Affirmative Defenses, the Defendant alleges that the Plaintiff failed to comply with the pre-suit demand letter requirements of Florida Statute 627.736(11) and that the Plaintiff has no standing to bring her lawsuit because of an assignment of rights and benefits to a third party. Pursuant to Rule 7.135, Florida Small Claims Rules the Defendant seeks an appropriate order or judgment.
3. Rule 1.010, Florida Rules of Civil Procedure provides that the Florida Rules of Civil Procedure apply unless the Florida Small Claims Rules apply. Per Rule 7.010(b) Florida Small Claims Rules, the Small Claims Rules apply if a case is civil in nature, filed in county court, and the demand does not exceed $5000.00. While Plaintiff’s Complaint alleges entitlement to damages not exceeding $15,000.00, the actual demand conveyed to the Defendant, per Exhibit “B”, does not exceed $5000.00 and this Court therefore concludes that the Small Claims Rules apply and that the pending matter is properly before the Court under Rule 7.135, Florida Small Claims Rules.
4. With respect to the Defendant’s allegation that the Plaintiff’s demand letter does not comply with Florida Statute 627.736(11)(b)(3), this Court finds that the demand letter and the attached itemization does not specifically state the services rendered nor does the demand letter or itemization specify the exact amount owed, or the date of relevant treatment. In addition, this Court notes that Plaintiff’s payment ledger indicates an unpaid balance of $40.00 while the demand letter inconsistently references $113.80 as the amount claimed. Therefore, this Court concludes that Plaintiff has not satisfied the statutory prerequisite for bringing her cause of action. Aaron E. Thomas v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 664c (4th Judicial Cir., Duval Cty., March 18, 2005).
5. With respect to standing, it is uncontested that Shafer Chiropractic Clinic accepted an assignment of benefits, as executed by the Plaintiff, before the commencement of her suit and that no revocation of the foregoing assignment has occurred. An insured who assigns their rights and has not obtained a revocation of that assignment lacks standing to convey a demand letter. Carlos Hobbs v. Progressive American Insurance Company, 12 Fla. L. Weekly Supp. 1172b (4th Judicial Cir., Duval Cty., September 19, 2005). At the hearing, Plaintiff’s counsel argued that the Shafer Chiropractic Clinic was paid in full and that the assignment would somehow automatically revert back to the Plaintiff. Plaintiff’s counsel failed to site any authority for the foregoing proposition and this Court concludes to the contrary. Kelly Purvin v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 1104c (18th Judicial Cir., Seminole Cty., August 18, 2005). Therefore, this Court concludes that, absent Plaintiff regaining her rights as transferred by her assignment to Shafer Chiropractic Clinic, she lacks standing to bring her claim.
6. In light of this Court’s conclusion that the Plaintiff failed to satisfy pre-suit requirements with a proper demand letter and lacked standing to bring her claim, there is no triable issue with respect to Affirmative Defenses raised in paragraphs 16 &18 of the Defendant’s Answer and this Court is compelled to summarily enter an appropriate order, per Rule 7.135, Florida Small Claims Rules, and it is, therefore,
ORDERED AND ADJUDGED:
1. The Defendant’s Motion for Summary Disposition Regarding Non-Compliant Pre-Suit Demand as filed on June 7, 2007 is hereby granted and that Plaintiff’s April 26, 2007 Complaint is hereby DISMISSED, without prejudice.
