22 Fla. L. Weekly Supp. 465a
Online Reference: FLWSUPP 2204DGONInsurance — Personal injury protection — Demand letter — Where insurer sought summary judgment concerning defective demand letter that requested payment for services not rendered, and medical provider did not seek abatement of proceedings to correct demand letter until five months later on date of summary judgment hearing, granting motion for abatement would violate due process — Motion for summary judgment is granted
A&B THERAPY CENTER, INC. a/a/o GONZALEZ, DAVID, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-7922 SP 25. October 10, 2014. Charlie Johnson, Judge. Counsel: Munir Barakat, for Plaintiff. Scott E. Danner, Kirwan Spellacy & Danner, P.A., for Defendant.Order Granting Defendant’s Motion for Summary Judgmentand Denying Plaintiff’s Motion for Abatement
This cause came before the Court on October 2, 2014, for a Motion for Summary Judgment by the defendant concerning certain alleged deficiencies in the plaintiff’s demand letter. It must be noted that the plaintiff did not seek an abatement of the proceedings to correct the demand letter until the actual date of the hearing, October 2nd. The motion was filed electronically at 7:36 pm the night before, and neither the defendant nor the Court were aware of it until the actual hearing at 10:15 am. The defendant objected to the abatement, having neither notice of the matter, nor a copy of the motion prior to the summary judgment hearing. Concerning hearing the additional motion, the law appears clear: a trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing. Margulies v. Margulies, 528 So. 2d 957, 959 (Fla. 3d DCA 1988).
In Progressive v. Menendez, 979 So.2d 324 (Fla. 3d DCA 1988), the Third District confronted a factually similar issue. The plaintiff sought abatement after failing to comply with a statutory condition precedent, that is, issuing a demand letter. Id. at 334. Progressive’s answer, proposed amended answer, and motion for summary judgment put the plaintiff on notice of their failure to comply with that statutory requirement. Id. The plaintiff did not elect to seek abatement, but rather litigated the case for nearly a year. Id. The Third District Court stated the following:
Because the plaintiffs (even after being put on notice by Progressive) took the position that they did not have to comply with the statutorily mandated presuit demand requirements and failed to seek abatement of their lawsuit until the issue of whether presuit notice was required to maintain their lawsuit could be determined, we conclude that the plaintiffs waived their right to argue on appeal the failure of the trial court to abate their action.
In the instant case, the defendant’s motion for summary judgment was filed on May 15, 2014. Summary Judgment was argued on October 2, 2014, nearly five months later. The entire time the plaintiff was aware that the demand letter was defective, in that it requested payment for services not rendered — nineteen separate charges for electro stimulation services that the claimant never received due to a separate health condition. The plaintiff could have moved for abatement at any time during that nearly 5 month period. The Court is now faced with a quandary: the plaintiff asked for abatement as an alternative fall-back position after arguing for the Court to deny the defendant’s motion for summary judgment. The Court is being asked for abatement (effectively post-summary judgment) when the matter has not been duly noticed to the detriment of the defendant. Such an action is proscribed by due process concerns. As such, the motion for abatement is denied. Summary Judgment is granted on the issue of the defective demand letter.
