22 Fla. L. Weekly Supp. 734b
Online Reference: FLWSUPP 2206MERRInsurance — Personal injury protection — Demand letter — Defects — Abatement — Motion to abate PIP action to afford medical provider opportunity to cure defective demand letter is denied
RICHARD W. MERRITT, D.C., P.A., a/a/o EILEEN MENDENHALL, Plaintiff, vs. AUTO CLUB SOUTH INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 2014CC-001386. December 18, 2014. Gerald P. Hill, II, Judge. Counsel: Abraham S. Ovadia, Florida PIP Law Firm, P.A., Boca Raton, for Plaintiff. David Kampf and William Kirilloff, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION TO ABATE
THIS CAUSE came before the Court on December 12, 2014, for hearing on Plaintiff’s Motion to Abate (the “Motion”). Having reviewed the Motion, pleadings, and affidavits of record, having heard the arguments of counsel, and otherwise being fully advised on the premises, the Court finds as follows:BACKGROUND AND ANALYSIS
Plaintiff filed this action on March 27, 2014 for breach of contract, in which Plaintiff alleges Defendant owes certain amounts for medical services which Plaintiff provided to Eileen Mendenhall (“Claimant”). Claimant was insured under a policy issued by Defendant, and Plaintiff seeks recovery of certain sums pursuant to Claimant’s policy with Defendant.
As part of its response to the Complaint, Defendant raised eight affirmative defenses. Defendant’s first affirmative defense alleges that Plaintiff failed to properly provide the pre-suit demand letter required by § 627.736(10), Fla. Stat. At the hearing on Plaintiff’s Motion, Plaintiff conceded its pre-suit demand did not comply with § 627.736(10), Fla. Stat. As such, Plaintiff seeks to abate this action in order to have an opportunity to issue a new pre-suit demand to Defendant.
Plaintiff argues that “[g]enerally, the proper remedy for premature litigation is an abatement or stay of the claim.” Wright v. Life Ins. Co. of Georgia, 762 So. 2d 992, 993 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b]. However, Florida Courts have held that as defects in a required pre-suit demand may not be cured merely by the passage of time, a lawsuit filed subsequent to a defective demand is not merely premature, and as such, “dismissal, and not abatement, is the proper remedy.” Foundation Chiropractic Clinic, Inc. v. State Farm Mutual Automobile Insurance Company, 20 Fla. L. Weekly Supp. 694(c) (Palm Beach Co. May 3, 2013) (citing Progressive Express Insurance Co., Inc. v. Menendez, 979 So. 2d 324, 333 (Fla. 3d DCA 2008) [32 Fla. L. Weekly D2891a]).
As § 627.736(10), Fla. Stat. sets forth specific requirements for pre-suit demand, and as Plaintiff concedes its pre-suit demand prior to filing this action was defective, and as these defects cannot be cured merely by this passage of time, abatement of this action is not the proper remedy.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Motion to Abate is DENIED.
