18 Fla. L. Weekly Supp. 483b
Online Reference: FLWSUPP 1805FILI
Insurance — Personal injury protection — Demand letter — Issue of whether demand letter complies with PIP statute is not properly resolved on motion to dismiss where motion requests court to look outside four corners of complaint
RUSSELL E. TURNER, D.C., PLLC, a Florida Corporation, (assignee of Filipiak, Kinga), Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County. Case No. 10-965-SC. February 28, 2011. Eugene C. Turner, Judge.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court for hearing on January 24, 2010 on the Defendant’s Motion to Dismiss and the Court, having reviewed the motion and Court file and having heard argument of counsel hereby finds as follows:
Factual Background: This is a P.I.P. suit. Defendant moves to dismiss the Plaintiff’s Complaint alleging that the Plaintiff’s demand letter to the Defendant failed to comply with F.S. s. 627.736(10). While the Plaintiff responds that the demand letter contains all of the necessary requirements of F.S. s. 627.736(10), it further maintains that the issue of whether the demand letter complied with F.S. s. 627.736(10) is not a proper issue for the Court to consider on a motion to dismiss as it improperly requests the Court to look outside the four (4) corners of the Plaintiff’s complaint.
Conclusions of law: The purpose of a motion to dismiss is to test whether the plaintiff has stated a viable cause of action. Department of Highway Safety and Motor Vehicles v. Paul Bowers, 987 So.2d 148, 149 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D1752a] and Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D847a].
When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. Susan Fixel, Inc., 842 So.2d at 206 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D847a] citing to Bell v. Indian River Mem. Hosp., 778 So.2d 1030, 1032; see also Department of Highway Safety and Motor Vehicles v. Paul Bowers, 987 So.2d 148, 149 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D1752a] and Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1084a].
In the instant case, the demand letter is not attached to the complaint nor is it required to be so attached. See F.R.C.P. 1.130. Additionally, the Plaintiff alleges in paragraph 12 of its Complaint that “Plaintiff has complied with all conditions precedent to the filing of this lawsuit, including compliance with Section 627.736(10), Florida Statutes).” This allegation must be taken as true for purposes of a motion to dismiss. Susan Fixel, Inc., 842 So.2d at 206 (Fla. 3rd DCA 2003) [28 Fla. L. Weekly D847a].
Accordingly, because the Defendant’s Motion to Dismiss requests this Court to consider the Plaintiff’s demand letter, a matter outside of what is alleged and attached to the Complaint, the Defendant’s Motion to Dismiss is hereby denied.
