17 Fla. L. Weekly Supp. 199a
Online Reference: FLWSUPP 1703QUI2Insurance — Personal injury protection — Demand letter sent to wrong carrier — Where insurer responded to demand letter sent to wrong carrier three times without any mention of defect and insurer is related to wrong carrier, insurer had actual and imputed notice of medical provider’s intent to initiate litigation and cannot avail itself of invalid demand letter defense — Where insurer and wrong carrier named as defendant are sufficiently related, insurer knew that provider made clerical error in suing wrong carrier, and provider has moved to amend complaint to substitute insurer as defendant, defense that provider sued wrong carrier is moot
PHYSICIANS REHAB GROUP, INC., a Florida Corporation (assignee of Quintero, Jose), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-6731 SP 23 (1). December 11, 2009. Myriam Lehr, Judge. Counsel: Russel Lazega, North Miami. Matt Hellman, P.A., Plantation.
[Editor’s note: See also 17 Fla. L. Weekly Supp. 123b.]
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Re: Demand Letter Defense)
THIS CAUSE, came before the court for hearing on November 4, 2009 on Defendant’s Motion for Summary Judgment as to Defendant’s first and second affirmative defenses, respectively, 1) failure to comply with F.S. s. 627.736(10) and 2) suit filed against wrong insurance carrier. The operative facts are as follows:
Factual Background. This is a P.I.P. suit. Defendant seeks summary judgment asserting 1) that Plaintiff failed to comply with F.S. s. 627.736(10) (specifically, that Plaintiff sent its demand letter to State Farm Mutual Automobile Insurance Company instead of State Farm Fire and Casualty Insurance Company) and 2) that Plaintiff filed suit against the wrong insurance carrier (specifically, against State Farm Mutual Automobile Insurance Company rather than State Farm Fire and Casualty Insurance Company). Plaintiff responds: 1) that the demand letter substantially complied with F.S. s. 627.736(11) and that State Farm Fire and Casualty had actual notice of the claim and 2) that State Farm Fire and Casualty waived the defense by responding to the demand and failing to give notice of any alleged defect.
Legal Conclusions:Demand Letter Sent to Wrong Carrier and P.I.P. Contact
In considering whether a substantially compliant demand letter is sufficient to meet the pre-suit notice requirements of F.S. s. 627.736(11) (now F.S. s. 627.736(10)) the 11th Judicial Circuit has looked by comparison to the liberal notice provisions of the medical malpractice statute and stated that:
[S]trict compliance with the medical malpractice claim statute “is in no way essential” to its legislative goal. Patry, 633 So. 2d at 12. Since the goals are the same for the medical malpractice claim statute and the pre-suit demand letter/notice requirement found in the PIP statute, it follows that strict compliance is not required for that statute either. See also USA Roofing Supply, Inc. v. Farmer, 5 Fla. L. Weekly Supp. 726a (Fla. Polk Cty. July 20, 1998) (although the mechanic’s lien law is a statutory creation and “must be strictly construed, substantial compliance with the notice to owner provision is sufficient to maintain a valid mechanic’s lien. . . . Substantial Compliance may be shown by implied actual notice. Implied actual notice, being an inference of fact, may be drawn by the court as a matter of law when warranted by the circumstances of the particular case calling for its application in order to grant equitable relief. . . . Implied actual notice is inferred from the fact that the person had the means of knowledge, which it was his duty to use and which he did not use.”) (Citations omitted). Under the circumstances of this case, it is found, as a matter of law, that a substantially compliant demand letter was sent to the Defendant and it had implied actual notice of Plaintiff’s suit by the letter’s address which stated it was a “PRE-SUIT DEMAND LETTER PURSUANT TO F.S. 627.736(11).”
Similarly, in the instant case, State Farm Fire and Casualty had actual and imputed notice of Plaintiff’s intent to initiate litigation as 1) it responded to Plaintiff’s demand letter three (3) times within the required thirty days under F.S. s. 627.736(11) and without any mention of a defect with the demand letter and 2) it is sufficiently related to State Farm Mutual Automobile, and, therefore, cannot avail itself of this defense.
Plaintiff Sued Wrong Carrier
Florida law holds that the addition of a new party will relate back when the new party is sufficiently related to the original party that the addition will not prejudice the new party. Darden v. Beverly Health & Rehab., 763 So. 2d 542, 542-543 (Fla. 5th DCA 2000); Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So. 2d 451, 453 (Fla. 4th DCA 1999); Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4th DCA 1997).
Thus, relation back will usually apply when the new party “knew or should have known that the plaintiff had made a mistake or was guilty of a misnomer as concerns the correct identity of the defendant so that the added party was deemed to have suffered no prejudice by being tardily brought in or substituted as a party.” Kozich, 702 So. 2d at 1291 (quoting Michelin Reifenwerke, A.G. v. Roose, 462 So. 2d 54, 57 (Fla. 4th DCA 1984)).
In the instant case, State Farm Fire and Casualty and State Farm Mutual Automobile are sufficiently related to each other and State Farm Fire and Casualty clearly knew that Plaintiff made a clerical error in suing State Farm Mutual Automobile (in fact State Farm Fire and Casualty corrected the Plaintiff’s mistake). Clearly, State Farm Fire and Casualty suffered no prejudice.
Plaintiff has moved to amend the complaint to substitute State Farm Mutual Automobile for State Farm Fire and Casualty, therefore, Defendant’s defense is moot.
ACCORDINGLY it is hereby ORDERED & ADJUDGED based on the foregoing analysis of fact and law that Defendant’s Motion for Summary Judgment based upon Defendant’s affirmative defense of 1) non-compliance with F.S. s. 627.736(10) and 2) wrong carrier sued is DENIED.
