24 Fla. L. Weekly Supp. 671g
Online Reference: FLWSUPP 2409AMARInsurance — Personal injury protection — Coverage — Medical expenses — Trial court erred in granting summary judgment in favor of insurer based on provider’s failure to send demand letter to correct individual — Appropriate remedy is dismissal without prejudice or abatement, not granting summary judgment
BLUE COAST PROFESSIONAL MASSAGE, LLC, (a/a/o Andres Martinez), Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Collier County. Case No. 15AP02. L.T. Case No.13CC1081. Opinion issued March 29, 2016. Appeal from the County Court for Collier County; Mike Carr, Judge. Counsel: Marlene S. Reiss, Miami, for Appellant. Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Appellee.
(PER CURIAM.) Appellant, Blue Coast Professional Massage, is appealing the trial court’s judgment. We have jurisdiction pursuant to Fla. R. App. P. 9.030(c). The standard of review to be applied to an order granting final summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. The standard of review for statuary pre-suit demand under § 627.736(10), Florida Statute is also de novo as the issue is the interpretation of the statute or determination whether a pre-suit demand complies with it. See MRI Associates of America, LLC v. State Farm Fire and Cas. Co., 61 So.3d 462, 464 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. On Issues I, II and III, we affirm without further comment. On Issue IV, whether final summary judgment was a proper remedy, we reverse and remand for further proceedings.
On December 5, 2012, Assigner Andres Martinez allegedly sustained an injury in an automobile accident while insured by Progressive (hereinafter “Appellee”). Blue Coast Professional Massage (hereinafter “Appellant”) provided massage services to Martinez and accepted an assignment of his Personal Injury Protection Insurance (hereinafter “PIP”). Appellant alleges that it submitted charges to Appellee but that no payment was made. On March 14, 2013, Appellant sent its statutory pre-suit Demand Letter to Appellee, addressed to “Progressive Ins., Robert K. Cole, Claims Department,” pursuant to § 627.736(10) Fla Stat. On April 10, 2013, Appellee, through an individual other than the addressee, Robert K. Cole and the correct recipient, Doug Helton, acknowledged the receipt of the demand letter. No mention was made that the demand letter had been sent to the wrong person.
Appellant filed suit on May 28, 2013. Appellee, within the answer and affirmative defenses, denied the general allegation that Appellant satisfied all conditions precedent to suit. On January 9, 2014, Appellee moved for summary judgment and alleged that Appellant failed to send the demand letter to the correct individual and that Appellee was entitled, as a matter of law, to judgment for the failure satisfy a condition precedent.
At the summary judgment hearing on August 4, 2014, Appellant raised a substantial compliance argument asking to be excused from its demonstrated non-compliance. The trial court considered and rejected the arguments and authorities and granted judgment in Appellees favor. The order on summary judgment expressed the rationale that the demand letter was defective on its face and that abatement was not appropriate.
The Appellant presented four issues for appeal. We affirm Issues I, II, and III, alleging due process violations, waiver and pre-suit compliance issues, without further comment. As to Issue IV, whether final summary judgment was the proper remedy for a party’s failure to comply with a condition precedent, we find that case law does not support the trial court’s ruling, and, therefore, reverse. The Second District Court of Appeal has previously reversed the final judgment in favor of Defendant on its defense alleging that Plaintiff failed to comply with a contractual condition precedent. Pena v. Citizens Prop. Ins. Co., 88 So.3d 965 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D946a] (holding that pre-suit requirements are curable). See also, Wright v. Life Ins. Co. of Ga., 762 So.2d 992,933 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b] (which allowed Plaintiff to cure a condition precedent). Following this case law, a party that failed to comply with a condition precedent should be allowed an opportunity to cure the deficiencies. Therefore, the appropriate remedy is dismissal without prejudice or abatement, not granting summary judgment.
Accordingly, we AFFIRM, in part, and REVERSE, in part, and remand to the trial court for further proceedings in accordance with this opinion. (CORBIN, BRODIE, and LABODA., JJ., concur.)* * *
