15 Fla. L. Weekly Supp. 1125b
Insurance — Personal injury protection — Complaint — Conditions precedent — Demand for mediation — Mediation is not mandatory condition precedent to filing PIP suit — Statute which provides that filing demand for mediation tolls requirements for filing personal injury suit for 60 days does not apply to PIP claims
MIRAMAR CHIROPRACTIC CENTER, LLC, D/B/A MIRAMAR MEDICAL CENTER, INC., a Florida Corporation (assignee of Dol, Faubert 2), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-05404 COCE (56). August 8, 2008. Linda R. Pratt, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Gweneth M. Brimm, Ft. Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSE
THIS CAUSE came before the court for hearing on August 8, 2008. Based upon the record, legal authorities and having heard argument of counsel, the court finds as follows:
Factual Background: This is a P.I.P. case. Defendant has pled as its second affirmative defense that Plaintiff failed to comply with a condition precedent to suit by refusing to participate in pre-suit mediation demanded by the insurer pursuant to F.S. s. 627.745. Plaintiff responds that Florida Statute s. 627.745 does not establish any condition precedent to suit.
Conclusions of Law: Florida Statute s. 627.745 provides:
627.745 Mediation of claims. —
(1)(a) 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.
(b) A request for mediation shall be filed with the department on a form approved by the department. The request for mediation shall state the reason for the request for mediation and the issues in dispute which are to be mediated. The filing of a request for mediation tolls the applicable time requirements for filing suit for a period of 60 days following the conclusion of the mediation process or the time prescribed in s. 95.11, whichever is later. (emphasis added)
While Florida Statute s. 627.745 utilizes several terms of legal significance — nowhere does it ever use the term “condition precedent.” Rather, the statute provides that if either party requests mediation under F.S. s. 627.745, the party has additional time to file a lawsuit (presumably to allow time to complete the mediation and digest the results).
Tolling a statute of limitations is a term of legal significance which means “to extend the time to file” — which is not the equivalent of a condition precedent to filing suit (which means to establish a technical requirement or pre-condition to bringing a lawsuit).
Had the legislature intended pre-suit mediation to be a mandatory condition precedent to filing a lawsuit it would have said so in F.S. s. 627.745 as it did with the pre-suit demand letter provisions of F.S. s. 627.736(10) (2007) which expressly provide that “As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.”
The court further agrees with the courts which have held that the statute on its face applies to claims for personal injury, which a P.I.P. claim is not. See Faith Medical Group, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 829c (County Court, Dade County 2008); Medlife Health Care, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 826a (County Court, Dade County 2008); and Gardens EFL Imaging Center, LLC v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 736a (County Court, Palm Beach 2008). While the court agrees that mediation is a useful tool to reduce litigation, if the legislature intended to limit a right of access to the courts by making mediation a mandatory condition precedent to suit in P.I.P. cases it should clearly state so.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s Affirmative Defense #2 (pre-suit mediation Required) is hereby GRANTED with prejudice.
