22 Fla. L. Weekly Supp. 814a
Online Reference: FLWSUPP 2207ADDEInsurance — Personal injury protection — Class actions — Injunctions — Injunctive relief is not available to redress withholding of PIP benefits — Class action for PIP benefits is inappropriate due to pre-suit demand letter requirement — Plaintiff may pursue action for PIP benefits individually after satisfaction of demand letter requirement
PAN AM DIAGNOSTIC SERVICES, INC., d/b/a WIDE OPEN MRI aao RAY ADDERLY, Plaintiffs, vs. EQUITY INSURANCE COMPANY and WINDHAVEN MANAGERS, INC., Defendants. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Complex Business Litigation Division. Case No. 14-4772-CA-40. December 11, 2014. John W. Thornton, Judge. Counsel: Tod Aronovitz and Barbara Perez, Aronovitz Law; Joseph Landy and Glenn Siegel, Lesser Lesser Landy & Smith PLLC; and Rami Shmuely, Shmuely & Willis P.A., for Plaintiff. Marcy Levine Aldrich and Valerie Greenberg, Akerman LLP, Miami, for Defendant.
ORDER ON MOTION TO DISMISS AMENDED COMPLAINT
THIS MATTER came before the Court on the above noted motion, and the Court having reviewed the file, the motion, memoranda, the Court proceeds pursuant CLP §4.4, and being otherwise fully advised in the premises, it is
ORDERED and ADJUDGED as follows:
Count I — Injunctive Relief. Injunctive relief is available to prevent a threatened harm, but is not available to redress harm which has already occurred. Speer v Evangelisto, 662 So. 2d, 1340, 1341-42 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2551d]. The conduct complained of here has already occurred, thus it cannot be part of any action for injunctive relief. Id. The only threatened harm here is the withholding of PIP benefits — a purely monetary issue which may be remedied by an action for monetary damages. There is no barrier stopping Plaintiff from so proceeding. The motion to dismiss is GRANTED with prejudice.
Count II — Unpaid PIP Benefits. Fatal to this cause of action is the pre-suit notice requirement. See e.g. DWFII Corp., v. State Farm Auto. Ins. Co., 271 F.R.D. 676, 685 (S.D. Fla 2010). As a result, a class action for PIP benefits is inappropriate. See also Shenandoah Chiropractic, P.A. v. National Specialty Insurance Co., 526 F. Supp. 2d 1283 (S. D. Fla. 2007). Thus the motion to dismiss is GRANTED with prejudice as to the class.
Plaintiff, individually, may still pursue Count II, after complying with pre-suit notice requirements, in County Court.
The motion to disqualify attorney Rami Shmuely is deemed moot.
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