17 Fla. L. Weekly Supp. 741a
Online Reference: FLWSUPP 1709BUEN
Insurance — Personal injury protection — Error to grant insurer’s motion for summary judgment based upon provider’s failure to serve presuit demand letter, a condition precedent to filing of suit, where insurer did not move to dismiss initial complaint on this basis, provider subsequently served insurer with a demand letter, insurer refused to pay in response to the demand letter, provider filed amended complaint alleging compliance with condition precedent, and insurer did not raise demand letter issue in its motion to dismiss amended complaint or in its affirmative defenses to the amended complaint
EDUARDO J. GARRIDO, D.C., P.A., a/a/o CECILIA BUENO, Appellant v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Number 09-008 AP. Lower Case No. 06-002527 CC 25 (1). An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County,Andrew S. Hague, Judge. March 30, 2010. Counsel: Christian Carranzana, Panter, Panter, Sampedro, P.A., for Appellant. Michael J. Neimand, United Automobile Insurance Company, Office of General Counsel, for Appellee.
(Before SCOLA, KARLAN and GROSS, JJ.)
OPINION
(GROSS, Judge.) Eduardo J. Garrido, D.C., P.A., (“Garrido”) as assignee of Cecilia Bueno (“Bueno”), appeals a grant of final summary judgment and dismissal without prejudice in favor of United Automobile Insurance Company (“United Auto”). For reasons more fully set forth below, we reverse.
On October 4, 2005, Bueno sustained injuries in an automobile accident. Bueno was insured by United Auto. Garrido provided medical treatment to Bueno from October 12, 2005 to January 30, 2006. In turn, Bueno assigned her personal injury protection (“PIP”) benefits to Garrido. Garrido sought reimbursement for his medical services from United Auto. None of the bills were paid.
Based upon United Auto’s failure to pay, Garrido filed suit on February 15, 2006. However, Garrido failed to serve a pre-suit demand letter to United Auto as required by subsection 627.736(11), Florida Statutes (2003). The demand letter is a condition precedent to the filing of a lawsuit. Id.
United Auto raised the failure to comply with the condition precedent as an affirmative defense to the Complaint. Though United Auto did move to dismiss the Complaint on other grounds, and though plethora of cases would have supported a dismissal of the complaint for failure to comply with the condition precedent, see City of Coconut Creek v. City of Deerfield Beach, 840 So. 2d 389, 393 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D760a]; Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979); Citron v. Shell, 689 So. 2d 1288, 1291-92 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D776a], disapproved on other grounds by Cohen v. Dauphinee, 739 So. 2d 68 (Fla. 1999) [24 Fla. L. Weekly S178a], United Auto did not move to dismiss the complaint based upon the failure to comply with the condition precedent.
On November 8, 2006, well within the statute of limitations period, Garrido served United Auto with a demand letter. United Auto refused to pay in response to the demand letter. Subsequently, on December 5, 2006, Garrido filed a Motion for Leave to Amend Complaint. The proposed Amended Complaint asserted that Garrido had now complied with the condition precedent. A hearing on the Motion for Leave to Amend was held on January 9, 2007 at the conclusion of which the court granted the motion and ruled that the Amended Complaint was deemed filed as of January 9, 2007 — more than 60 days after submission of the demand letter.
On October 22, 2007, United Auto filed an Answer and Affirmative Defenses as well as a Motion to Dismiss Garrido’s Amended Complaint. Once again, United Auto did not raise the issue of noncompliance with the pre-suit demand letter in its motion to dismiss. Furthermore, United Auto’s affirmative defenses to the Amended Complaint did not raise the defense of failure to comply with the pre-suit demand letter.
On March 7, 2008, United Auto moved for summary judgment asserting it was entitled to judgment on the ground that Garrido failed to serve a pre-suit demand letter before the initial complaint was filed. On June 5, 2008 Garrido filed a cross motion for summary judgment asserting that he had now complied with the pre-suit demand letter provision and had cured any defects in the original complaint by filing his Amended Complaint after obtaining leave of court.
On June 23, 2008, while the two cross-motions for summary judgment were pending, United Auto moved for leave to amend its answer. The court granted the motion and, in its amended answer, United Auto alleged as a third affirmative defense that Garrido failed to meet all conditions precedent prior to filing the lawsuit pursuant to subsection 627.736(11) Florida Statutes.
United Auto’s motion for summary judgment and Garrido’s cross motion were heard on October 6, 2008. After hearing arguments, the trial court granted final summary judgment in favor of United Auto and dismissed Garrido’s action without prejudice. The court, relying upon Progressive Express Insurance Company, Inc. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], cert. granted, 994 So.2d 1105 (Fla. 2008), disapproved on other grounds, Menendez v. Progressive Exp. Ins. Co., Inc., 2010 WL 375080 (Fla. 2010) [35 Fla. L. Weekly S81a], found that Garrido’s demand letter to United Auto which was submitted while the litigation was pending failed comply with the statutory preconditions required by subsection 627.736(11) and made the amended complaint subject to dismissal without prejudice.
Garrido then filed this timely appeal.
Our review is conducted de novo to determine whether there is a genuine issue of fact and whether the court applied the correct rule of law. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. The facts of this case are not disputed.
On appeal, Garrido argues that although his initial Complaint was improperly filed due to his failure to provide the statutorily required demand letter, his filing of an Amended Complaint with permission of the court after submission of the demand letter cured such failure. We agree.
Section 627.736(11)1 states:
Demand letter:
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. Such notice may not be sent until the claim is overdue2, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
Compliance with the foregoing provision is a condition precedent to maintaining suit. Askew v. County of Volusia, 450 So.2d 233, 234 (Fla. 5th DCA 1984). See also, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla. 1979). “[W]here a plaintiff fails to comply with a statutory condition precedent, the lawsuit is not merely premature, and dismissal, not abatement, is the proper remedy.” Progressive Express Ins. Co. v. Menendez, 979 So.2d 324, 333 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], cert. granted, 994 So.2d 1105 (Fla. 2008), disapproved on other grounds, Menendez v. Progressive Exp. Ins. Co., Inc., 2010 WL 375080 (Fla. 2010) [35 Fla. L. Weekly S81a]. “If there remains sufficient time to comply with the statutory precondition, the action should be dismissed with leave to amend.” City of Coconut Creek v. City of Deerfield Beach, 840 So. 2d 389, 393 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D760a]. See also, Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979) (stating that a failure to allege compliance with notice to Department of Insurance under section 768.28(6) required the action to be dismissed with leave to amend); Citron v. Shell, 689 So. 2d 1288, 1291-92 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D776a], disapproved on other grounds by Cohen v. Dauphinee, 739 So. 2d 68 (Fla. 1999) [24 Fla. L. Weekly S178a] (finding that the claimant who failed to comply with condition precedent to medical malpractice action should be given opportunity to cure noncompliance with unexpired portion of limitations period).
Like this case, the plaintiff in the Menendez case failed to send any demand letter before filing suit. However, unlike this case, the Menendez plaintiff failed to file an amended complaint. Instead, eleven months into the litigation, the plaintiff sent a demand letter to the insurer and then argued that the mere filing of the demand letter cured the defect. The Menendez court held that the failure to comply with the pre-suit requirement required that the case be dismissed.
In this case, United Auto filed its Motion to Dismiss the original Complaint on June 27, 2006. Had United Auto timely raised the failure to comply with condition precedent in its motion, the trial court would have been required to dismiss the complaint with leave to file an amended complaint. See City of Coconut Creek v. City of Deerfield Beach, 840 So. 2d 389 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D760a]. Thus, in mid-2006, Garrido could have then sent the demand letter and, upon non-compliance by United Auto, filed his amended complaint. Whether out of inadvertence, oversight or to gain a strategic advantage, United Auto did not raise this ground in its motion to dismiss. Instead, it merely raised the failure to comply with the condition precedent as an affirmative defense.
Garrido, upon receiving the affirmative defenses of United Auto, and realizing he had failed to comply with the condition precedent, submitted the demand letter, waited the appropriate time for United Auto to fail to pay, and then filed a motion for leave to file an amended complaint. When the trial court granted the motion for leave to amend and deemed the Amended Complaint to have been filed in January 2007, it was the functional equivalent of a dismissal with leave to amend. Garrido, who preemptively took action to correct his error, should not now have to suffer an unwarranted dismissal of the amended complaint because United Auto neglected (or affirmatively chose not) to assert its rights to a dismissal with leave to amend at an earlier stage in the proceedings.
The order granting final summary judgment and dismissing the amended complaint without prejudice is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.3
REVERSED and REMANDED. (KARLAN, SCOLA, JJ, concur.)
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1The 2003 version of the statute governs because it was the statute in effect at the time the parties entered into the insurance contract, as factually provided by Garrido. See Hassen v. State Farm Mut. Ins. Co., 674 So.2d 106 (Fla. 1996) [21 Fla. L. Weekly S102c].
2Fla. Stat. §627.736(4)(a) provides: “Personal injury protection insurance benefits… shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.”
3We note that if Garrido ultimately prevails below, he would not be entitled to any attorneys’ fees and costs arising from the filing of the premature lawsuit, i.e. prior to the granting of the motion for leave to amend on January 9, 2007. See Hospital Corp. of America v. Lindberg, 571 So.2d 446, 449 (Fla. 1990).
