15 Fla. L. Weekly Supp. 826a
Insurance — Personal injury protection — Complaint — Premature — Demand for mediation — Statute which provides that filing demand for mediation tolls requirements for filing suit for 60 days does not apply to first-party PIP claims
MEDLIFE HEALTH CARE, INC., (a/a/o Leonor Villa), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-00479 SP 26 (02). June 4, 2008. Robin Faber, Judge. Counsel: Zachary A. Hicks, Samole & Berger, P.A., Miami, for Plaintiff. Ilona Katrus, Office of the General Counsel.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S SECOND AFFIRMATIVE DEFENSE
THIS CAUSE, having come before this Court upon Plaintiff’s Motion to Strike Defendant’s Second Affirmative Defense, and the Court having been otherwise advised in the premises, makes the following findings of fact and law:
1.The underlying Complaint contains two counts. The first count pertains to Defendant’s alleged breach of contract for failure to pay personal injury protection benefits pursuant to Florida Statute § 627.736. The second count is for Defendant’s alleged breach of contract for failure to timely provide Plaintiff with an explanation of denial pursuant to Florida Statute § 627.736(4)(b).
2. Defendant filed its Answer and Affirmative Defenses, which states in pertinent part:
Plaintiff has failed to meet all conditions precedent prior to filing of the lawsuit in that Plaintiff has failed to comply with to F.S. 627.745, and Defendant insurance policy general 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.
3. The Court finds that Florida Statute § 627.745 applies to claims for personal injury and claims for property damage as stated unambiguously in the statute.
4. The statute referenced by Defendant’s affirmative defense and addressed by this Court states:
In any claim filed 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.
Fla. Stat. § 627.745 (1)(a) (2008) (emphasis added).
5. Plaintiff argued that since the underlying claim is not for property damage or personal injury, then neither party can request mediation under Florida Statute § 627.745 as said statute does not apply to PIP claims.
6. Defendant argued that a PIP claim was a claim for personal injury and that the Court should deny Plaintiff’s Motion to Strike.
7. Florida law is clear that “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217 (Fla. 1984). See also, Barco v. School Board of Pinellas County, 2008 WL 321469 (Fla. 2008) [33 Fla. L. Weekly S87b].
8. The Court finds that Florida Statute § 627.745 is clear and unambiguous in that it applies to claims for personal injury and property damage only.
9. The Court is mindful of Defendant’s argument that Personal Injury Protection insurance benefits contains the actual words personal injury therein. However, the proper question is whether a PIP claim is a claim for personal injury.
10. The underlying action is neither an action seeking recovery for personal injuries nor is it an action for property damage. Therefore, Florida Statute § 627.745 does not apply to PIP cases. The Court is mindful of Fidelity National Ins. Co. v. Armando Perera, 2 Fla. L. Weekly Supp. 508b (Fla. 11th Jud. Cir. Ct. 1994) and Padilla v. Liberty Mutual Ins. Co., 832 So. 2d 916 (Fla. 1st DCA 2002) but finds that these cases are not controlling regarding the issue before this Court.
11. Therefore, the Court grants Plaintiff’s Motion and hereby strikes the Defendant’s Second Affirmative Defense.
