18 Fla. L. Weekly Supp. 614b
Online Reference: FLWSUPP 1807FREE
Insurance — Personal injury protection — Demand letter — Claim for interest — PIP statute does not require service of demand letter prior to filing action for payment of interest only
AXCESS DIAGNOSTICS POINT WEST LLC, d/b/a BOWES IMAGING CENTER, As Assignee of Brandi Freeman, Plaintiff, vs. MGA INSURANCE COMPANY, INC, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 10-004293-SC-SPC. April 4, 2011. Honorable Edwin B. Jagger, Judge. Counsel: Marc B. Nussbaum, Reeder & Nussbaum, P.A., St. Petersburg, for Plaintiff. Steven T. Stock, Dutton Law Group, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSOR IN THE ALTERNATIVE MOTION FORSUMMARY JUDGMENT
This Cause, having come on for hearing on Defendant’s Motion To Dismiss or in the Alternative Motion For Summary Judgment, on March 23, 2011, with the court having reviewed the file, having heard argument from counsel and other being advised in the premises, the court rules as follows:
UNDISPUTED FACTS
1. Plaintiff filed the instant lawsuit seeking the payment of interest and seeking the production of an Explanation of Benefits and PIP Log.
2. Plaintiff did not file a Pre-Suit Demand Letter, pursuant to F.S. 627.736(10), prior to filing this lawsuit.
3. At the hearing on Defendant’s Motion To Dismiss or in the alternative Motion For Summary Judgment, counsel for Plaintiff clarified the only issue in the case is Defendant’s failure to pay interest on the overdue claim.
4. This is not a lawsuit for benefits, but rather for interest.
5. Plaintiff does not believe they are required to file a demand letter for interest only.
6. Defendant believes a demand letter is required for a claim for interest only.
THE LAW
This case involves one of statutory interpretation. In addressing the interpretation of a statute, this court must look first to the plain language of the statute. Hawkins v. Ford Motor Co., 748 So.2d 993, 997 (Fla. 1999); Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993); St. Petersburg Bank & Trust v. Hamm, 414 So.2d 1071, 1073 (Fla. 1982). “While legislative intent controls construction of statutes in Florida, that intent is determined primarily from the language of the statute. The plain meaning of the statutory language is the first consideration.” Dep’t of Revenue v. Cent. Dade Malpractice Trust Fund, 673 So.2d 899, 900 (Fla. 1st DCA 1996) [21 Fla. L. Weekly D1119a] (citing St. Petersburg Bank & Trust v. Hamm, 414 So.2d at 1073 (Fla. 1982).
The Legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc, 766 So. 2d 229 (Fla. 4th Dist. Ct. App. 2000) [25 Fla. L. Weekly D316a].
The relevant statutory provision applicable to this matter is:
F.S. 627.736(10) DEMAND LETTER. —
(a) 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 overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(10)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured. . . .
The plain language of Florida Statutes s. 627.736 does not require the service of a demand letter for the payment of interest only, where the defined benefits are not being sought.
WHEREFORE, it is Ordered and Adjudged as follows:
1. Defendant’s Motion To Dismiss or in the alternative Motion For Summary Judgment is hereby Denied.
2. Defendant raised the or tenus argument that the claim presented by Plaintiff is de minimus. The court does not address that argument at today’s hearing as the argument was not presented to the court in Defendant’s written motion, prior to hearing.
3. The court is dismissing Plaintiff’s complaint, without prejudice, solely to require Plaintiff to amend the allegations in the complaint to make clear it is seeking the payment of interest only in this matter.
4. Plaintiff shall have ten (10) days to file an Amended Complaint.
5. Defendant shall have twenty (20) days to respond to Plaintiff’s Complaint.
