17 Fla. L. Weekly Supp. 123b
Online Reference: FLWSUPP 1702QUIN
Insurance — Personal injury protection — Demand letter sent to wrong carrier — Medical provider’s request to abate lawsuit to allow it to re-submit demand letter sent to wrong carrier and PIP contact is granted
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). November 25, 2009. Myriam Lehr, Judge. Counsel: Law Offices of Russel Lazega, North Miami. Matt Hellman, P.A., Plantation.
[Editor’s note: See also 17 Fla. L. Weekly Supp. 199a.]
ORDER GRANTING PLAINTIFF’S MOTION TO ABATE
THIS CAUSE, came before the court for hearing on November 16, 2009 on Plaintiff s Motion to Abate. The operative facts are as follows:
Factual Background: This is a P.I.P. suit. Defendant seeks summary judgment asserting that Plaintiff failed to comply with F.S. s. 627.736(10), specifically, that Plaintiff sent its demand letter to the wrong P.I.P. contact recipient and to the wrong State Farm company (Plaintiff sent its demand letter to State Farm Mutual Automobile Insurance Company instead of State Farm Fire and Casualty Insurance Company). Plaintiff responds by moving to abate the instant lawsuit, and asserts that abatement would render Defendant’s failure to comply with F.S. s. 627.736(10) defense (and motion for summary judgment) moot as abatement would allow Plaintiff to re-submit a corrected demand letter and Defendant to respond to the re-submitted demand letter without any obligation to pay attorney’s fees and costs.
Legal Conclusions: This Court finds that Plaintiff’s demand letter does not substantially comply with F.S. s. 627.736(10). This Court further finds that, despite Plaintiff’s failure to comply with F.S. s. 627.736(10), that Defendant’s defense and motion for summary judgment are rendered moot as Plaintiff has timely and properly requested abatement. See Willis v. Huff, 736 So. 2d 1272, 1273 (Fla. 4th DCA 1999) (holding the trial court should have granted plaintiff’s request to allow him time to comply with the condition precedent to filing suit instead of entering summary judgment against him).
Abatement is the proper remedy for a prematurely filed suit. Sandra D. Wright v. Life Ins. Co. of Ga., 25 Fla. L. Weekly D1527b (Fla. 4th DCA 2000) (holding that Wright’s failure to comply with a condition precedent barred suit against insurer until compliance but noting “that the outcome here may have been different had Wright asked the trial court for an abatement until she complied with the condition precedent”).
Additionally, pre-suit notice requirements should be “construed in a manner that favors access to courts.” Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283 (Fla. 5th DCA 2004). However, if the court were to grant the relief sought by the Defendant, the Plaintiff would be barred from recovery. To honor all competing policies, the court believes the appropriate disposition is to abate this case so that the Plaintiff can attempt to correctly comply with the statutory pre-suit requirements and provide Defendant with the opportunity to make payment on the re-submitted demand pursuant to F.S. s. 627.736(10) without incurring any obligation to pay attorney’s fees or costs under F.S. s. 627.428.
ACCORDINGLY it is hereby ORDERED & ADJUDGED based on the foregoing analysis of fact and law that Plaintiff’s Motion to Abate is GRANTED. Plaintiff shall have twenty days to serve a corrected pre-suit demand letter in compliance with F.S. s. 627.736(10). Defendant shall have thirty days from receipt of the demand letter to make payment pursuant to. F.S. s. 627.736(10). If payment is made pursuant to F.S. s. 627.736(10), Defendant shall not be responsible for attorney’s fees or costs under F.S. s. 627.428.
