18 Fla. L. Weekly Supp. 409a
Online Reference: FLWSUPP 1804BROO
Insurance — Personal injury protection — Demand letter — Affidavit of insurer’s claims manager cannot rebut presumption that demand letter mailed in ordinary course of business by medical provider’s attorney was received by insurer where claims manager has no personal knowledge of what mail was received because she is not responsible for processing of incoming mail
DADE INJURY REHABILITATION INC., a Florida corporation (a/o Brooker, Nia), Plaintiff, vs. WESTERN GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-1783 COCE (55). February 11, 2011. Sharon L. Zeller, Judge. Counsel: Russel Lazega, North Miami, for Plaintiff. David R. Howland, Coral Gables, for Defendant.
ORDER
THIS CAUSE having come before the court on Defendant’s Motion for Summary Judgment, and the Court having heard argument of same, and being fully advised in the premises, the Court finds as follows:FACTS
1. Plaintiff filed a lawsuit against Defendant for non-payment of a medical bill under Defendant’s Personal Injury Protection (PIP) policy. Defendant had insured a minor, Nia Booker, who was injured in an accident and sought treatment at the Plaintiff’s medical center.
2. Defendant had paid all of the bills submitted by Plaintiff in this case except for a bill for dates of treatment 10/9/06 to 10/13/06 in the amount of $688.80.
3. Plaintiff filed a PIP lawsuit against Defendant for failure to pay the $688.80 bill.
4. Defendant states that Plaintiff failed to satisfy a statutory condition precedent to filing this PIP lawsuit as Plaintiff did not send a pre-suit demand letter via certified or registered mail, return receipt requested, as Florida Statute §627.736(11)(2006) requires.
5. Florida Statute §627.736(11)(2006) states that as a condition precedent to filing any action for benefits, the insured must be provided with a written notice or demand letter, and that letter must be delivered to the insurer by U.S. certified or registered mail, return receipt requested.
6. Paragraph 11 is a general allegation that plaintiff complied with all conditions precedent. Paragraphs 42, 43 and 44 are in Count IV entitled “Breach of Contract for Failure to Provide Copy of Insurance Policy and Declaration Page.” Paragraph 52 is in Count V entitled “Breach of Contract for failure to Pay Amounts Owed.”
7. Defendant filed a general denial to paragraphs 11 and 52, and a special denial as to paragraphs 42, 43 and 44.
8. Each independent cause of action is pleaded in a separate count. In the answer a pleader shall state their defenses to each claim asserted. Each claim and each defense other then denials shall be stated in a separate count or defense. Fla. Rule of Civil Procedure 1.10. Subsequently, in Fla. Rule Civil Procedure 1.120 (c): A denial of performance or occurrence of a condition precedent shall be made specifically. Paragraph 11, which was incorporated into the breach of contract count, was a general averment that all conditions precedent has been performed. Defendant should have denied this allegation specifically and with particularity. Defendant should have set out which conditions precedent Plaintiff did not satisfy.
9. Plaintiff’s counsel filed affidavits outlining their standard office procedure which is to prepare a demand letter and a certified mail card which is prepared in an envelope for mailing and mailed to the address indicated on the letter. A copy of the demand letter is attached to the affidavit showing: a “Via Certified Mail #91 ETC. dated December 13, 2007. In September, 2010, another employee of Plaintiff’s counsel made an affidavit stating that USPS no longer has information for certified mail over one year old. There was no affidavit as to the whereabouts of the return receipt card.
CASE LAW
Customary evidence of mailing is competent proof of that fact, but may be rebutted by evidence to the contrary, including evidence of no receipt; and thereby creates a question of fact for the jury. Bomon vs. State Farm Mutual Auto. Ins., 505 So.2nd 445 (Fla. 1st DCA 1987).
The mail box presumption provides that when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing and it is presumed that the item mailed was in fact received by the addressee. Allstate vs. Eckert, 472 So.2nd 807 (Fla. 4th DCA 1985). The next question is whether the Defendant presented sufficient evidence that they did not receive the demand letter so as to create a question of fact for the jury to decide.
If a party satisfactory establishes a presumption, and the opposing party does not thereafter contradict the presumption by credible evidence, the presumption is established as a matter of law. Nationwide Mut. Ins. Co. vs. Griffin, 222 So.2d 754 (Fla. 4th DCA 1969).
The affidavit of Kari Stern, the Claims Manager for Defendant, identifies that all documents received at Defendant’s location are scanned into the applicable claims file and the original documents are batch filed by date. Ms. Stern stated that she reviewed all batch files from December 13 through December 31, 2007 and could not locate the pursuit demand letter. Ms. Stern further attempted to locate the whereabouts of the letter by using the certified mail number listed on the letter: 91 7108 2133 3934 7544 6552. The number listed on the letter was not recognized as a certified mail number by the U.S. Postal Service. See Stern Affidavit.
Florida Rule of Civil Procedure 1.510(e) provides in part: An affidavit filed in support of a motion for summary judgment must be made on personal knowledge; set forth such facts as would be admissible in evidence; and must show affirmatively that the affiant is competent to testify to the matters stated therein. Ms. Stern does not indicate that she, personally or another individual in her office received and/or scanned the mail into the claims file. She refers to the whole company’s system but did not state the facts upon which her knowledge was based except for her review of the records. This is hearsay at best and cannot support a summary judgment. An employee of a business must have personal knowledge of the documents that are received by that business.
Defendant cannot rebut the mailbox presumption by relying on their Claims Manager due to the fact that:
1. She has no personal knowledge of what mail was received as she is not responsible for the intake processing of incoming mail;
2. She cannot provide the proper evidentiary foundation to be admissible at trial and therefore cannot be relied upon for summary judgment;
3. She did not establish a predicate that she is competent to give testimony on behalf of the Defendant regarding receipt of the documents at issue.
Therefore, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment be, and the same is hereby DENIED. However, Defendant, shall be allowed 20 days to amend its affirmative defenses in order that the facts conform to the pleadings.
