22 Fla. L. Weekly Supp. 263a
Online Reference: FLWSUPP 2202NORTInsurance — Personal injury protection — Complaint — Amendment — Medical providers may not amend complaint to add additional dates of service where providers previously amended complaint and moved for summary judgment without asserting claim for additional service dates, and providers did not send pre-suit demand letter for additional service dates
NORTH FLORIDA CHIROPRACTIC & REHABILITATION CENTER, INC., As assignee of PHUOC LE, Plaintiff, vs. INFINITY AUTO INSURANCE COMPANY, Defendant and NORTH FLORIDA CHIROPRACTIC & REHABILITATION CENTER, INC., As assignee of BA HUYNH, Plaintiff, vs. INFINITY AUTO INSURANCE COMPANY, Defendant. Countyt, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-001557-XXXX-MA, Division CC-G. August 19, 2014. Scott F. Mitchell, Judge. Counsel: D. Scott Craig, Jacksonville, for Plaintiff. Kimberly A. Sanderfer, Tampa, for Defendant.
ORDER DENYING PLAINTIFFS’ (SECOND)MOTION TO AMEND COMPLAINT
This matter came before the Court upon Plaintiffs’ (Second) Motion to Amend Complaint on July 16, 2014. Counsel for both parties appeared before the Court. After hearing argument of counsel and being otherwise fully advised in the premises, the Court makes the following findings:
1. This is Plaintiffs’ second request to amend the Complaint. The Court notes that Plaintiff amended the Complaint previously, upon stipulation of the parties, to include an additional medical provider and date of service.
2. Plaintiffs seek to amend the Complaint to add additional dates of service that were provided almost two (2) years ago to Phuoc Le and Ba Huynh.
3. Plaintiffs’ counsel advised the Court that the amendment was sought to add additional dates of service. Plaintiffs’ counsel advised the Court that it had just recently received an updated ledger from Plaintiff and was not aware of the additional dates of service it now seeks to add to the Complaint when the Complaint was first amended in this case.
4. The Court notes that Plaintiff previously sought to and amended the Complaint in this action in November, 2013, but did not seek to amend to add any additional dates of service at that time.
5. The Court also notes that Plaintiffs filed a Motion for Summary Judgment in this matter, which was heard on May 20, 2014. At that time Plaintiffs did not seek to amend the Complaint, and sought entry of judgment only on dates of service 9/7/2012 — 9/17/2012 for Phuoc Le and dates of service 9/7/2012-9/17/2012.
6. The Court rejects Plaintiffs’ argument that Defendant was placed on notice of the additional dates of service that were not included in the pre-suit demand letters sent to Defendant prior to the institution of this action, which it seeks to add to the Complaint, by virtue of Defendant’s assertion of material misrepresentation as an affirmative defense in this action.
7. Section 627.736(10), Fla. Stat., requires the submission of a pre-suit demand letter to an insurer prior to the institution of an action for personal injury protection benefits. The underlying purpose of the statute is to provide notice to an insurer of the amount at issue to provide the insurer an opportunity to avoid litigation.
8. Section 627.736(10), Fla. Stat., does not make any distinctions as to whether a demand letter should or should not be sent when an insurer raises any particular defense and more specifically, when an insurer raises the defense of material misrepresentation.
9. Further, § 627.736(10), Fla. Stat., does not limit or prevent a claimant from submitting multiple demand letters to an insurer.
10. Plaintiffs should have and could have sent additional demand letters to Defendant prior to the Institution of this action.
11. The Court also rejects Plaintiffs’ contention that § 627.738(10), Fla. Stat., allows a claimant to amend a Complaint to add additional dates of service without sending a pre-suit demand letter including those additional dates of service prior to the institution of the action.
12. The Court relies upon the case law cited in Defendant’s Response & Opposition to Plaintiff’s Motion to Amend Complaint and argue at hearing.
It is thereupon,
ORDERED AND ADJUDGED that Plaintiff’s (Second) Motion to Amend Complaint is hereby DENIED.
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