21 Fla. L. Weekly Supp. 263a
Online Reference: FLWSUPP 2103KREJInsurance — Personal injury protection — Claims — Lost wages — Where insured did not submit claim for wage loss and supporting documentation prior to serving pre-suit demand letters demanding lost wages, insured failed to satisfy conditions precedent to submitting demand letter and filing suit — Abatement of proceedings to allow insured to comply with conditions precedent is not appropriate
DANIELLE KREJCI, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Okaloosa County. Case No. 2013-SC-001299F. October 24, 2013. Jim Ward, Judge.
ORDER ON DEFENDANT’S MOTIONFOR SUMMARY DISPOSITION
THIS CAUSE having come before this Honorable Court on Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY’S Motion for Summary Disposition, and the Court being fully advised in the premises, the Court makes the following findings:
1. The Plaintiff filed this case alleging nonpayment of wage loss benefits under No-Fault/Personal Injury Protection (“PIP”) benefits, related to a motor vehicle accident that occurred on January 30, 2012.
2. Prior to serving a pre-suit demand and filing suit, Plaintiff failed to provide Defendant with notice of a wage loss claim or the amount of same, as required by F.S. § 627.736(4).
3. The first mention of a claim for wage losses was submitted by Plaintiff’s counsel to Defendant on February 4, 2013, in the body of a pre-suit demand, under provisions of F.S. 627.736(10). With that correspondence, Plaintiff’s Counsel advised, for the first time, that his client had a wage loss claim, but did not provide any documentary support for the wage loss claim, the name of Plaintiff’s purported employer, or even how Plaintiff was employed. In his first pre-suit demand, Plaintiff’s Counsel stated, in pertinent part, “additionally, Ms. Krejci was employed at the time of the accident and earned approximately $12.00 per hour. She has not been able to work in her former occupation. Ms. Krejci’s combined wage loss exceeds the remaining P.I.P.”
4. On March 8, 2013, Defendant responded to the 2/4/2013 pre-suit demand by letter to Plaintiff’s Counsel, advising, in pertinent part:
“please be advised that the wage claim being presented in your demand is the first notice of a wage claim on file. . . . . . . . . . . .[i]f a wage claim is being presented, we will need the following information: No Fault application, Disability note specifying inability to work due to the motor vehicle accident; 13 week wage and salary verification form completed by employer.”
5. Plaintiff’s Counsel did not submit any of the requested documentation to Defendant in response to Defendant’s 3/8/2013 letter. Instead, Plaintiff served Defendant with another pre-suit demand, dated April 29, 2013. This time, Plaintiff’s Counsel provided an estimate of wage losses, the name of the purported employer and a description of her employment.
6. On May 30, 2013, Defendant responded to Plaintiff Counsel’s 4/29/2013 pre-suit demand by letter, and addressed Plaintiff Counsel’s purported wage loss claim, in pertinent part, as follows: “Regarding the lost wage claim. We will need documentation supporting a loss of income. No Fault Application, Disability Note specifying inability to work due to the motor vehicle accident; 13 week wage and salary verification form completed by employer and/or tax returns.”
7. Plaintiff’s Counsel filed this lawsuit without providing Defendant with any additional wage loss information.
8. F. S. § 627.736 (b) provides as follows, in pertinent part:
Disability benefits. . — Sixty percent of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his or her household. All disability benefits payable under this provision must be paid at least every 2 weeks.
9. A Claimant must submit a claim to the PIP insurer and then the PIP insurer must pay within thirty days, upon receipt of reasonable proof of a covered loss. F. S. § 627.736 (b) provides as follows, in pertinent part, as follows:
(4) Payment of benefits. . — Benefits due from an insurer under ss. 627.730-627.7405 are primary, except that benefits received under any workers’ compensation law must be credited against the benefits provided by subsection (1) and are due and payable as loss accrues upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405. If the Agency for Health Care Administration provides, pays, or becomes liable for medical assistance under the Medicaid program related to injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle, the benefits under ss. 627.730-627.7405 are subject to the Medicaid program. However, within 30 days after receiving notice that the Medicaid program paid such benefits, the insurer shall repay the full amount of the benefits to the Medicaid program.
(b) Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. (Emphasis added).
10. Once a claim for benefits is overdue, then plaintiff is required to submit a pre-suit demand. F.S. § 627.736(10), provides, in pertinent part, as follows:
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). (Emphasis added).
11. Plaintiff’s Counsel, in his first pre-suit demand letter, dated February 4, 2013, used the pre-suit demand procedure to make a demand for wage loss which had never before been submitted to Defendant. Accordingly, when the first pre-suit demand was submitted, Plaintiff had failed to satisfy conditions precedent to serving the pre-suit demand, because the claim for wage loss benefits was not “overdue”. Under F.S. § 627.736(4)(b), Plaintiff’s Counsel was first required to place Defendant on notice of a covered loss of wage loss and the amount of that loss. He did neither. He advised Defendant only that plaintiff had been employed and was unable to work in her former occupation. He did not say what her employment had been, or even where she had worked. Moreover, if Defendant had paid some amount of wage loss in response to that first pre-suit demand, it would have been required to pay a 10% penalty and postage, in addition to interest on the “overdue” amount.
12. Despite Defendants request for the submission of a claim and documents to support the claim, Plaintiff’s Counsel did not submit any further documentation to Defendant until he served Plaintiff’s April 29, 2013 pre-suit demand. At that time, using the pre-suit demand procedure, instead of the claims submission procedure, Plaintiff’s Counsel advised that Plaintiff had worked as an exotic dancer at the Matador Club in Valparaiso, Florida. However, the claim was otherwise naked, with no supporting documentation — no income tax returns, no w-2 from her employer — no evidence whatsoever to support the wage loss claim. No claim had been submitted to Defendant, in compliance with F. S. § 627.736 (4)(b), and Defendant was not given the opportunity to investigate and evaluate the claim for payment. The claim was therefore not “overdue”. Instead, Plaintiff’s Counsel had again submitted a purported “pre-suit” demand, payment of which would have required Defendant to pay interest, postage and a 10% penalty.
13. Plaintiff was required to submit her claim for wage loss to comply with 627.736(4)(b), and she failed to do so. Instead, Plaintiff’s Counsel submitted a demand under provisions of 627.736(10), which was done before the claim was submitted, and before payment of the claim was overdue. Accordingly, Plaintiff failed to satisfy conditions precedent to submitting a pre-suit demand and also failed to satisfy conditions precedent to filing this lawsuit.
14. At the hearing on Defendant’s Motion for Summary Disposition, Plaintiff’s counsel made a Motion ore tenus for the Court to abate proceedings, rather than dismissing Plaintiff’s Complaint. However, abatement is not appropriate where Plaintiff has failed to comply with a Statutory Condition Precedent. Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D811a].
WHEREFORE, IT IS ORDERED and ADJUDGED as follows:
1. The Defendant’s Motion for Summary Disposition is GRANTED, Plaintiff’s ore tenus Motion for Abatement is Denied, and this case is Dismissed, without prejudice.
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