18 Fla. L. Weekly Supp. 421a
Online Reference: FLWSUPP 1804AKIN
Insurance — Personal injury protection — Demand letter — Where insured did not own cause of action at time she submitted presuit demand letter, having assigned her rights and benefits to various medical providers, and demand letter is defective for indicating it is 15-day demand rather than 30-day demand and referencing incorrect statute, insured failed to satisfy condition precedent to filing suit
APRIL AKINS, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2008-CC-57964. October 22, 2010. Honorable William T. McCluan, Judge. Counsel: Wendy L. Pepper, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
This cause having come to be heard upon the Defendant’s Motion for Final Summary Judgment (Certificate of Service June 25, 2010), on October 7, 2010, and the Court having reviewed the Motion, having heard argument of counsel and having been otherwise fully advised in the premises hereby finds as follows:
1. On or about January 24, 2008, USAA received a purported Pre-Suit Demand letter from Plaintiff dated January 10, 2008 seeking payment of PIP benefits to the Plaintiff regarding bills from four of her medical service providers.
2. The purported Pre-Suit Demand letter indicates that it is a “15 DAY DEMAND LETTER under § 627.736(11)”.
3. The insured Plaintiff had previously assigned her rights and benefits to each of the four medical providers and did not obtain any revocations or reassignments of those benefits prior to sending the purported Pre-Suit demand letter to USAA.
4. On February, 5, 2008, in response to the Plaintiff’s purported demand letter, USAA advised the insured that she had previously assigned her rights and benefits directly to the healthcare providers.
5. Plaintiff then obtained revocations of the assignments from three of the four healthcare providers and ultimately filed this lawsuit without resubmitting a new presuit demand letter.
6. The Statute in effect at the time of the submission of the Pre-Suit Demand letter, Florida Statute § 627.736(10), became effective on January 1, 2008. Section “b” of the statute indicates that the pre-suit notice required shall state that it is a “demand letter under § 627.736(10)”. That statute also provides the insurance carrier thirty (30) days to respond to the Pre-Suit Demand letter.
Based on the foregoing, this Court hereby ORDERS and ADJUDGES as follows:
7. This Court finds that strict compliance with Florida Statute § 627.736(10) is required.
8. Since the Plaintiff did not own the cause of action at the time she submitted her Pre-Suit Demand letter, because she had previously assigned her rights and benefits to the various medical providers, coupled with the fact that the purported demand letter indicates it is a 15 day demand pursuant to §627.736(11), the Pre-Suit Demand letter is defective and does not comply with the statutory requirements.
9. There remain no genuine issues as to any triable facts. Plaintiff failed to provide Defendant with the statutorily required written notice of an intent to initiate litigation and thus, has failed to meet the statutory conditions precedent to filing this suit.
10. Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, April Akins, take nothing by this action and Defendant, USAA Casualty Insurance Company, shall go hence without day. The Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
