25 Fla. L. Weekly Supp. 942b
Online Reference: FLWSUPP 2511JPERInsurance — Personal injury protection — Presuit demand — Insurer entitled to summary judgment as matter of law where provider failed to send statutorily compliant presuit demand letter — Demand letter which misstated amount of claim by failing to account for insurer’s partial payment did not satisfy requirements of statute
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DOUGLAS DIAGNOSTIC CENTER, INC., a/a/o Jainek Perez, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE15-004802 (AP). L.T. Case No. COCE13-000969. December 18, 2017. Appeal from the County Court of the Seventeenth Judicial Circuit, Broward County, Robert W. Lee, Judge. Counsel: Nancy W. Gregoire, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, Esq., P.A., Miami, Florida, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Douglas Diagnostic Center, Inc. (“Douglas Diagnostic”) as to the legal sufficiency of Douglas Diagnostic’s pre-suit demand letter. Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and the final judgment is hereby REVERSED as set forth below:
In the proceedings below, Douglas Diagnostic filed suit to recover personal injury protection benefits from State Farm for breach of contract pursuant to an assignment of benefits from Jainek Perez (the “Insured”). On competing motions for summary judgment, the trial court ruled that State Farm had waived its defense and that Douglas Diagnostic had satisfied its prima facie burden. This Court reviews the decision de novo. See Moustafa v. Omega Ins. Co., 201 So. 3d 710, 714 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2064a].
“Waiver is ‘the intentional relinquishment of a known right.’ ” Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2227a] (quoting WSG W. Palm Beach Dev., LLC v. Blank, 990 So. 2d 708, 715 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2330a] (citations omitted)). The trial court reasoned that State Farm’s affirmative defense was not properly preserved at the pretrial conference, thus the issue was waived. However, State Farm continued to assert the defense in its answer, subsequent motions, pretrial conference, and summary judgment. As such, the trial court erred in ruling that State Farm had waived its right.
“The statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits.” MRI Associates of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b] (citing Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 879-80 (Fla. 2010) [35 Fla. L. Weekly S222b]). “As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer.” § 627.736(10)(a), Fla. Stat. Here, Douglas Diagnostic’s pre-suit demand letter misstated the amount of its claim by failing to account for State Farm’s partial payment. (R. 656-60). Under the plain language of the statute, the pre-suit demand letter “shall state with specificity” an “itemized statement specifying each exact amount” due. § 627.736(10)(b), Fla. Stat. (2012). Florida courts have held that this language is unambiguous and places the burden upon the plaintiff to fulfill the requirements outlined. MRI Associates of Am., LLC, 61 So. 3d at 465. As such, State Farm is entitled to summary judgment as a matter of law because Douglas Diagnostic failed to send a statutorily compliant pre-suit demand letter.
Accordingly, the final judgment in favor of Douglas Diagnostic is hereby REVERSED, and this case is REMANDED to the trial court for further proceedings consistent with this Opinion. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED, conditioned on State Farm prevailing in the trial court and the trial court’s determination that State Farm’s proposal for settlement complies with the requirements of the law. Douglas Diagnostic’s Motion for Appellate Attorney’s Fees and Costs is hereby DENIED. (BIDWILL, RODRIGUEZ, and SINGHAL, JJ., concur.)
