17 Fla. L. Weekly Supp. 125c
Online Reference: FLWSUPP 1702DARB
Insurance — Personal injury protection — Affirmative defense of payment which fails to set forth facts on which its conclusions are based is legally insufficient — Conditions precedent — Mediation — Claims for PIP benefits are not subject to pre-suit mediation requirements of section 627.745 — Answer and affirmative defenses stricken
MARTINEZ CHIROPRACTIC CENTER, INC., a/a/o Giselle D’Arbelles, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-002440 COCE 55. October 23, 2009. Sharon L. Zeller, Judge. Counsel: Andrew J. Weinstein. Weinsten & Associates, P.A., for plaintiff. Fesner Petion, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO STRIKE ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE having come before the undersigned upon the Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses, and the Court having reviewed the motion, heard argument of Counsel, and having been otherwise advised in the premises, finds as follows:
1. The above styled cause of action arises out of a claim for unpaid personal protection injury protection benefits filed by the Plaintiff on or about December 19, 2008.
2. The Defendant filed its Answer and Affirmative Defenses to the Plaintiff’s Complaint on February 4, 2009.
3. On April 16, 2009, Plaintiff filed a Motion to Strike Defendant’s Answer and Affirmative Defenses.
4. Defendant’s 1st affirmative defense alleges that Defendant made payments pursuant to Florida Statute 627.736 and Defendant’s policy of insurance. This affirmative defense fails to set forth any facts upon which its conclusions are based, accordingly, said affirmative defense is legally insufficient.
5. Defendant’s second affirmative defense alleges that “Plaintiff failed to meet all conditions precedent prior to filing the lawsuit in that Plaintiff failed to comply with F.S. 627.745” specifically, Plaintiff’s failure to engage in pre-suit mediation.
Conclusions of Law:
6. Section 627.745, Florida Statute (2007) applies to claims for personal injury and first party property damage claims. Section 627.745(1)(a) 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.”
7. Florida Statute Section 627. 745 is unambiguous and applies to claims for personal injury and claims for property damage. Robert Hanopole, D.C., P.A. a/a/o Romarie Dixon v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 946a (Fla. 17th Cir. Ct. July 21, 2008). It does not apply to an action for personal injury protection benefits. Id.; See Gardens Efl Imaging Center, L.L.C., a/a/o Fanny Munoz v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 736a (Fla. 15th Cir. Ct. May 6, 2008); Miramar Chiropractic Center L.L.C., d/b/a Miramar Medical Center, Inc. v. United Automobile Ins. Co., 15 Fla. L. Weekly Supp. 1125b (Fla. 17th Cir. Ct. Aug. 8, 2008).
8. In Select Medical Clinic, Inc. a/a/o Yolette Jean v. United Automobile Insurance Company, the Honorable Judge Gayles held claims for no-fault benefits are not subject to the pre-suit mediation provisions of Florida Statute 627.745. Select Medical Clinic, Inc. a/a/o Yolette Jean v. United Automobile Ins. Co., 15 Fla. L. Weekly Supp. 1107b (Fla. 11th Cir. Ct. Sept. 2, 2008). The Court construed the absence of any reference to no-fault or first party claims for medical expenses and wage loss in Fla. Stat. 627.745 as the legislature’s intent to exclude PIP claims from said statute. Id.
Therefore, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s answer and affirmative defenses be and the same is hereby granted as follows;
1. With respect to Defendant’s first affirmative defense, Plaintiff motion is granted with leave to amend within ten (10) days of the date of this Order.
2. Defendant’s second affirmative defense is stricken without leave to amend.
