21 Fla. L. Weekly Supp. 693c
Online Reference: FLWSUPP 2107ORTEInsurance — Personal injury protection — Demand letter — Where medical provider sent demand letter before bills were overdue and then filed complaint 12 days prematurely, proper remedy is dismissal — No merit to argument that defect in pre-suit notice is cured by passage of time
EDUARDO J GARRIDO, D.C., P.A., a/a/o JOSE ORTEGA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-6017 CC 26 (3). August 6, 2012. Order on Motion for Rehearing March 13, 2014. Michaelle Gonzalez-Paulson, Judge.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT RE: DEMAND
THIS MATTER came before the Court for hearing on July 26, 2012 on Defendant’s Motion for Final Summary Judgment Re: Demand and the court having heard arguments by Counsel, having reviewed the Motion, Responses, and Supplemental Responses; having reviewed the case law; and having been otherwise fully advised on the premises, the court finds:
It is undisputed that the Plaintiff filed suit on October 25, 2007. Plaintiff suit was prematurely filed by 12 days. Plaintiff’s suit became ripe on November 5, 2007. The Plaintiff argues that the defect in the pre-suit notice was cured by the passage of time when the action became ripe on November 5, 2007. Citing Angrand et.a1 v. Fox, et.al., 552 So. 2d 1113, 1115 (Fla. 3rd DCA 1989); and United Auto Ins. Co., v Ubeda, Case No.: 07-475 AP (Fla. 11th Jud. Cir. App. 2010) [18 Fla. L. Weekly Supp. 32a] (second revised opinion, September 2010). However, the cases cited by Plaintiff are distinguishable from the present case. In Angrand, which is not a PIP case the Court found that the Plaintiff had provided proper notice and that the defect was in the complaint. In the Ubeda case there was a 3 month gap between the demand letter and the suit allowing for the passage of time. In the case sub judice, the Plaintiff filed the Demand letter before the bills were overdue and then filed the complaint 12 days prematurely. The Defendant argues they were deprived the opportunity to conduct an investigation because they were not provided with proper notice and deprived of any additional opportunity because they were served with the lawsuit, in violation of F.S. 627.736(11). Defendant relies on Progressive Express Ins. Co. v Menendez, 979 So.2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a]. This case was subsequently quashed by Menendez v. Progressive Express Ins. Co., Inc., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S222b] However, the Progressive case was only quashed specifically because the court concluded that the 2001 amendment creating the statutory pre-suit notice provisions constitutes a substantive change to the statute and that it could not be retroactively applied to insurance policies issued before the effective date of the amendment. The Third District Court stated in Menendez that when a plaintiff fails to comply with the statutory condition precedent of F.S. 627.736 the proper remedy is dismissal. See United v Dynamic Medical Services, a/a/o Doralis Mesa, Case No.: 09-239 AP (Fla. 11th Cir. App. 2012) [19 Fla. L. Weekly Supp. 777a]. Therefore, it is:
ORDERED AND ADJUDGED: Defendant’s Motion for Final Summary Judgment Re: Demand is hereby GRANTED. The Court retains jurisdiction for the purpose of attorney’s fees and costs.
ORDER ON PLAINTIFF’S MOTION FORREHEARING ON DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT RE: DEMAND
THIS CAUSE came to be heard on October 21, 2013, on Plaintiff’s Motion for a rehearing on Defendant’s Motion for Final Summary Judgment re: Demand and after hearing arguments of counsel, reviewing the memorandums of law, the case law, and being fully advised in the premises, the court finds as follows:
The Court Granted Defendant’s Motion for Final Summary Judgment on or about August 2012, Plaintiff’s Motion for Rehearing was timely filed and the Court Granted the Rehearing. A rehearing was held on October 21, 2013, The Plaintiff argues that the Court misapplied the law and that the Court is bound by the 11th Judicial Circuit’s decision in United Auto Ins. Co. v. Ubeda, Case No.: 07-475 AP (Fla. 11th Jud. Cir. App. 2010) [18 Fla. L. Weekly Supp. 32a] (second revised opinion September 2010). In Ubeda, the Court mentions that they are revising their opinion due to the Supreme Court quashing of Progressive Express Ins. Co. v Menendez, 979 So.2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a]. However, in Menendez v. Progressive Express Ins. Co., 35 So.3d 873 (Fla. 2010) [35 Fla. L. Weekly S222b] the case was quashed specifically because the court concluded that the 2001 amendment creating the statutory pre-suit notice provisions constituted a susbstantive change in the statute and could not be applied retroactively. They did not address any of the additional claims in Menendez. This Court is bound by the Third District Court, and in Menendez, it clearly stated that when a plaintiff fails to comply with the statutory condition precedent, the lawsuit is not merely premature, and dismissal, not abatement is the proper remedy. The Plaintiff has at no time disputed the facts and conceded that the demand letter and the suit was premature. The Plaintiff could have asked for abatement of the premature action until they complied with the statute or could have voluntarily dismissed and refiled their action after complying with the presuit demand requirements. The Plaintiff argues that the passage of time cures prematurity. This Court understands that in Florida when a lawsuit is prematurely filed, the proper remedy at the trial level is an abatement or stay of the action and therefore by definition, mere prematurity is curable by the passage of time. See Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994); also Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA1989). However, the material breach of an insured’s contractual duty to perform a condition precedent renders the insurance contract ineffective and relieves the insurer of its contract obligation. Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1100a]. In the case at bar the Plaintiff did not comply with the condition precedent and further prematurely filed the suit. Therefore, this Court stands by its prior ruling on Defendant’s Motion for Final Summary Judgment re: Demand.
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