20 Fla. L. Weekly Supp. 185b
Online Reference: FLWSUPP 2002RODRInsurance — Personal injury protection — Demand letter addressed to correct authorized representative at incorrect post office box which was actually received by insurer substantially complied with section 627.736(10) — Proper standard when reviewing compliance of a PDL is “substantial compliance” and not “strict compliance”
ULTRA CARE & DIAGNOSTIC, CORP. a/a/o YANIA RODRIGUEZ, Plaintiff, v. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-16372-CC-05 (02). October 1, 2012. Honorable Teretha L. Thomas, Judge. Counsel: Adam Saben, Shuster & Saben, Miami, for Plaintiff. Jocelyn Poole, Dutton Law Firm, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO COMPLIANCEWITH F.S. 627.736 (10) “DEMAND LETTER”
THIS ACTION came before the Court on September 5, 2012 on the Defendant’s Motion for Summary Judgment on whether the Plaintiff properly complied with Florida Statute 627.736 (10) with respect to sending a compliant Pre-suit Demand Letter (“PDL”). Upon hearing argument of counsel and being otherwise full advised in the premises, the Court makes the following findings of fact and law:
1. Plaintiff sent a PDL to the Defendant, MGA, on July 27, 2011. The PDL was addressed to John Gutierrez, who was the proper authorized representative to accept PDL’s for the Defendant. The Defendant does not dispute receiving the Plaintiff’s PDL and the Defendant concedes John Gutierrez was the proper authorized representative.
2. The Defendant takes issue because the Plaintiff’s PDL was sent to P.O. Box 199022 and the proper P.O. Box was 199595. The letter was otherwise sent to the correct address, which was Dallas, Texas 75219. The Defendant’s position is that the legislature required “strict compliance” with Florida Statute 627.736 and therefore, since the P.O. Box was not correct, the Plaintiff sent a non-compliant PDL.
3. This Court finds United Automobile Insurance Company v. Fernando Sarria, 15 Fla. L. Weekly Supp. 1150a (Fla. 11th Cir Ct. 2008) to be dispositive of this case. In Sarria, the Court relied on Patry v. Capps, 633 So.2d 9 (Fla. 1994) to analyze the legislative intent of the PDL section of F.S. 627.736. Specifically, the Court analyzed whether the legislative intent of the pre-suit notice and screening requirements found in the medical malpractice statutes (section 768, et. Seq, Florida Statutes) required “strict” or “substantial” compliance and then likened the requirement in the medical malpractice statutes to be the same as that in the “PIP” statute. The Sarria court concurred with the Florida Supreme Court in Patry and ruled that “substantial compliance” was sufficient to meet the legislative intent, which is the “promotion of the settlement of meritorious claims early in the controversy in order to avoid full adversarial proceedings.” In this case, the Defendant did receive the PDL and was able to review the claim and respond to the Plaintiff in a timely and proper way. The Sarria Court then cites Patry to conclude:
“Patry announces that strict compliance with the medical malpractice claim statute “is in no way essential” to its legislative goal. Patry, 633 So. 2d at 12. Since the goals are the same for the medical malpractice claim statute and the pre-suit demand letter/notice requirement found in the PIP statute, it follows that strict compliance is not required for that statute either.” Sarria, at 1150.
Based on the Sarria and Patry, this Court finds that substantial compliance is both in accord with the legislative intent and forwards the goal of giving the parties an early and fair opportunity to resolve cases and reduce litigation.
4. Further, Plaintiff cites numerous cases where the sender of a PDL did not state correct information (or omitted information) and the Court found “substantial compliance.” See, Eduardo J. Garrido, D.C.P.A. a/a/o Angelica Rodriguez v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 1196a (Order of Miami-Dade County Court Judge Robin Faber, September 9, 2008)(failure to state 80% of the amount due; failure to include deductible; failure to state correct date of accident, claim, or policy number still meets substantial compliance where the copies of the bills with the correct information were attached); The Stand-Up MRI of Orlando, P.A. Llewllyn Baytops v. Progressive American Insurance Company, 19 Fla. L. Weekly Supp. 803b (Fla. 9th Cir. Ct., June 18, 2012)(demand letter stating incorrect date of accident and claim number substantially complied where the attached forms contained the correct information); Leroy Lockwood v. USAA Casualty Insurance Company, 16 Fla. L. Weekly Supp 1065b (Order of Orange County Court Judge Deb S. Blechman, August 4, 2009)(demand letter sent to the correct address but did not specify the correct individual’s name to receive demand letters meets substantial compliance).
THEREFORE, the Court finds that the proper standard when reviewing compliance of a PDL is “substantial compliance” and not “strict compliance.” Further, the Court finds that the Plaintiff’s PDL substantially complied with Florida Statute 627.736 (10). The Defendant’s Motion for Summary Judgment is DENIED.
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