22 Fla. L. Weekly Supp. 705a
Online Reference: FLWSUPP 2206TATUInsurance — Personal injury protection — Demand letter — Waiver — Upon determining that insured did not send demand letter to person or address specified by insurer for receipt of demand letters, court reconsiders and reverses finding that insurer waived demand letter defense by failing to respond to demand letter — Abatement — PIP case is abated to allow insured to issue valid demand letter — If insurer pays amount demanded, insured shall file voluntary dismissal and will not be entitled to attorney’s fees and costs
LUVENIA TATUM, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 1st Judicial Circuit in and for Okaloosa County, Civil Division. Case No. 2014 SC 000033 F. January 12, 2015. Jim Ward, Judge.
ORDER OF ABATEMENT
After considering all the evidence submitted by the Plaintiff and the Defendant, this Court has determined that the Plaintiff has failed to comply with the pre-suit demand requirements for the following three independent and distinct reasons:
(i) The Plaintiff’s claim was not overdue when she sent the demand letter dated June 25, 2013. Section 627.736(4)(b), Florida Statutes, requires written notice be given to the insurer of any covered loss and the amount of that loss. The claim becomes overdue if it is not paid within 30 days after this written notice. Only after the claim is overdue can the Plaintiff send the demand letter. The Plaintiff has not shown by the greater weight of the evidence that she submitted a claim prior to sending the demand letter dated June 25, 2013. Since she did not submit a claim prior to sending the demand letter, the claim was not overdue and thus pursuant to Fla. Stat. Sec. 627.736(10)(a), the Plaintiff was not permitted to submit a demand letter.
(ii) The Plaintiff did not include a completed wage and verification form with the demand letter, as required by Fla. Stat. Sec. (10)(b)(3). Furthermore, the demand letter did not contain any information, including medical information that would justify a lost wage claim.
(iii) The Plaintiff did not send the demand letter to the person or address specified by Mercury Insurance Company to receive demand letters, as required by Fla. Stat. Sec. 627.736(10)(c). Section 627.736(10)(c), Florida Statutes required the Plaintiff to send the demand letter “to the person and address specified by the insurer for the purposes of receiving notices under this subsection.” In this case, the Plaintiff sent the demand letter addressed to Eric Miller, which the evidence has shown is not the proper corporate representative designated to receive demand letters for the Defendant. Therefore, the demand letter was deficient.
The Plaintiff argued, and this Court previously found, that the Defendant waived its demand letter defense because it did not respond to the demand letter. However, the Plaintiff is unequivocally required to send the demand letter to the specified recipient for Mercury Insurance Company, which she did not. The Defendant cannot be charged with failing to properly respond to a demand letter that was not legally served upon them. Therefore, this Court reconsiders and reverses its previous finding of waiver.
Under the facts of this case, the case law states that an abatement (or stay) is warranted. See e.g., Mercury Ins. Co. v. Harvey Nelson, 20 Fla. L. Weekly Supp. 122a (17th Cir. Appeals 2012)(The Appellate Court overturned summary judgment in favor of the Plaintiff and remanded the case back to the trial court, where the trial court ordered an abatement, allowing time for the Plaintiff to submit a new demand letter, but disallowed any attorney’s fees to the Plaintiff if the Defendant paid the demand letter within 30 days of receiving the demand); see also Faith Medical Group v. United Automobile Ins. Co., 15 Fla. L. Weekly Supp. 1203a (11th Cir. 2008). Thus, this Court orders an abatement of this case. The abatement will be for such time to allow the Plaintiff to issue a valid demand letter, and also allow thirty days for the Defendant to pay the claim, without exposure to attorney’s fees and costs.
Accordingly, it is hereby ORDERED AND ADJUDGED that this case is abated or stayed for seventy days. The Plaintiff must submit a valid demand letter to the Defendant within twenty days of this Order, and the Defendant shall have thirty days from receipt of the demand letter to respond to the demand letter. If the Defendant responds to the demand letter and pays the amount demanded within thirty days of receipt of the demand letter, then Plaintiff shall not be entitled to any attorney’s fees and costs, and it shall file a voluntary dismissal with prejudice upon receiving the amount demanded by the Plaintiff.
