20 Fla. L. Weekly Supp. 122a
Online Reference: FLWSUPP 2002NELSInsurance — Personal injury protection — Demand letter that did not state exact amount insurer could pay to avoid litigation was insufficient to satisfy condition precedent — Order granting insured’s motion for summary judgment is reversed
MERCURY INS. CO. OF FLA., Appellant, v. HARVEY NELSON, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-09-037892 (26). L.T. Case No. 05-019361 (50). September 12, 2012. Amended (As To Attorneys Only) September 24, 2012. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. Wayne Koppel, Plantation, for Appellee.
AMENDED (AS TO ATTORNEYS ONLY)OPINION OF THE COURT
(HENNING, Judge.) THIS CAUSE came before the Court sitting in its appellate capacity, upon the Appellant’s timely appeal of the trial court’s order granting Appellee/Plaintiff’s Motion for Final Summary Judgment on June 8, 2009. This Court, having considered the briefs from both parties, the record on appeal, applicable case law, and being otherwise fully advised in the premises finds as follows:
On or about December 20, 2005 the Plaintiff/Appellee (Harvey) filed a complaint against the Defendant/Appellant (Mercury) seeking PIP benefits for medical bills for injuries that he sustained in an automobile accident on September 25, 2004. Harvey sent demand letters to Mercury on or about July 27, 2005 and September 16, 2005, and both were sent to Eric Miller, the claims adjuster in the case, who was not Mercury’s agent for purposes of receiving these demand letters. Attached to both letter were medical bills, some of which had already been paid by Mercury and some which were not yet overdue. Neither letter set forth the amount payable. Harvey filed suit seeking $3,225.00 in damages, plus interest, attorneys’ fees and costs. Mercury filed its Answer and Affirmative Defenses asserting that Harvey failed to send it statutorily compliant demand letters. Mercury moved for summary judgment and it was denied by the trial court. Harvey moved for final summary judgment, which was granted on June 8, 2009.
The applicable standard of review for orders granting summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach. L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id.
On appeal, Mercury contends that the demand letters that it received from Harvey were insufficient because the letters did not contain an exact amount necessary for Mercury to pay in order to avoid litigation. Mercury contends that Harvey’s failure to strictly comply with the PIP statute renders them inadequate and the lawsuit unmaintainable. Harvey states that since the demand letters were received and that Mercury timely responded to them Harvey was substantially compliant with the statute and that the letters were sufficient to provide Mercury with the requisite notice of intent to initiate litigation.
Florida’s PIP statute is very specific as to what is required of both sides with respect to the demand letter. It provides, in pertinent part, that:
(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 § 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.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due . . .
It is a condition precedent, under § 627.736 for the plaintiff to submit a demand letter to the insurer that specifies a compensable amount which the insurer could pay the provider to avoid litigation. Unless the insurer is put on notice of the exact amount to pay in order to avoid litigation, the purpose of the demand letter the entire purpose of submitting a demand letter would be defeated.
Therefore, this Court finds that the demand letters did not satisfy the requirements of Florida Statute § 627.736(10):
Accordingly, after due consideration, it is:
ORDERED AND ADJUDGED that for the above stated reasons the order granting Plaintiff’s Motion for Final Summary Judgment is hereby REVERSED. The case is REMANDED for proceedings consistent with this opinion.
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