25 Fla. L. Weekly Supp. 979c
Online Reference: FLWSUPP 2511WAGNInsurance — Personal injury protection — Demand letter — Insurer’s motion for summary judgment for failure to serve statutorily compliant demand letter is granted — Medical provider’s motion to abate and file “corrective” demand letter is denied — Insurer was not required to plead entitlement to attorney’s fees where it is seeking fees as sanction under section 57.105; insurer properly asserted claim for fees in motion
THE CENTER OF BONE & JOINT DISEASE, P.A., a/a/o William Wagner, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-007369. December 4, 2017. Herbert M. Berkowitz, Judge. Counsel: Anthony S. Fye, for Plaintiff. Stephen B. Farkas, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE came on before the Court on September 25, 2017, upon the following Motions: (1) Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Complaint Pre-suit Demand, (2) Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105, (3) Plaintiff’s Motion for Partial Summary Judgment Regarding Demand Letter Affirmative Defense, and (4) Plaintiff’s Motion to Abate Lawsuit with Regard to Submission of Demand Letter. Counsel for both parties appeared before the Court, although Plaintiff’s counsel advised a Voluntary Dismissal was forthcoming, none had yet been filed, so the hearing proceeded. After heard arguments of counsel, considered all Motions, and being otherwise duly advised in premises, the Court finds as follows:
1. The date of loss underlying this action is January 30, 2013.
2. Plaintiff directed a purported demand letter to Defendant, dated November 19, 2015. The demand letter set forth the date of loss as January 30, 2013, referenced the dates of service at-issue as August 31, 2011 through April 11, 2013, claimed the amount billed was $24,011.67, claimed the amount paid was $2,650.42, and claimed the amount due was $16,558.92. Attached to the demand was an alleged assignment of benefits and a billing ledger that encompassed all charges, services, treatment, and payment for dates of service August 31, 2011 through April 11, 2013.
3. Defendant, State Farm, responded to the November 19, 2015 demand via a written correspondence dated December 7, 2015. State Farm’s response letter asserted that the demand letter was not compliant with F.S . 627.736(10).
4. Plaintiff filed its lawsuit on March 3, 2016 with an initial Complaint that set forth, among other averments, that the date of loss was January 30, 2013 and claimed that $7,349.58 was due for dates of service August 31, 2011 through April 11, 2013.
5. On November 14, 2016, Plaintiff filed a Notice of Withdrawal of Motion, which specified that the Plaintiff was withdrawing all charges for all dates of service prior to but not including February 19, 2013. The withdrawal was for all dates of service beginning with August 31, 2011 and ending at December 12, 2012. The Notice further claimed that the dates of service that remained viable in this suit were February 19, 2013 through April 11, 2013.
6. Also on November 14, 2016, Plaintiff filed an Amended Complaint that set forth, among other averments, that the date of loss was January 30, 2013 and claimed that $2,695.18 was due for dates of service February 19 through April 11, 2013.
7. Both the Complaint and Amended Complaint claimed that the Plaintiff complied with conditions precedent. The Court finds that neither was the case.
8. Defendant filed their Answer with Affirmative Defenses on November 15, 2016.
9. Defendant filed their Motion for Summary Judgment for Failure to Serve a Statutorily Complaint Pre-suit Demand on November 17, 2016.
10. Plaintiff filed their Motion for Partial Summary Judgment Regarding Demand Letter Affirmative Defense on May 4, 2017, along with a Motion to Abate Lawsuit with Regard to Submission of Demand Letter.
11. Defendant filed their Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105 (Invalid Demand Letter) on June 8, 2017.
12. There was no other demand letter, submitted by or on behalf of the Plaintiff, other than the one dated November 19, 2015.
13. Section 627.736(10), Fla. Stat., sets forth the condition precedent to the filing of an action to recover personal injury protection benefits. Strict compliance is required. See Chambers Medical Group, Inc. (a/a/o Marie St. Hillare), v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. Ct. [Appellate] Dec. 1, 2006; and West Coast Chiropractic & Medical Centers, Inc. a/a/o Jorge Torres, v. MGA Insurance Co. Inc, Case No.: 12-8488 (Fla. 13th Cir. Ct. [Appellate] March 21, 2013) [25 Fla. L. Weekly Supp. 137a]. See, too Tampa Bay Imaging LLC., v. Esurance Ins. Co., 17 Fla. L. Weekly Supp. 1033b (Fla. Hillsborough Cty Ct. Dec. 2, 2009).
14. The Court finds that Plaintiff’s demand letter does not satisfy the condition precedent requirement as set forth in § 627.736(10), Fla. Stat.
15. Plaintiff also seeks an abatement in order to file a corrected demand letter. Defendant, State Farm, filed a Response in Opposition to Plaintiff’s Motion.
16. Defendant’s Motion for Sanctions is premised on the same facts and legal arguments made in its Motion for Summary Judgment for Failure to Serve a Statutorily Complaint Pre-Suit Demand.
17. In support of Plaintiff’s objection to Defendant’s Motion for Sanctions, the Plaintiff relied on the cases of BMR Funding, LLC, v. DDR Corporation, 67 So.3d 1137 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1193a] and Imseis, v. Zaher, 83 So.3d 1014 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D781a] for the proposition that a claim for attorneys’ fees must be plead.
18. Court finds that these cases are inapplicable in this particular case because Defendant is seeking fees as a sanction under §57.105(1). Such a claim for fees as a sanction does not have to first be pled, but may be asserted as a Motion as was done here.
THEREFORE, IT IS ORDERED AND ADJUDGED AS FOLLOWS:
A. Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Complaint Pre-Suit Demand is hereby GRANTED. Accordingly, Plaintiff’s Motion for Partial Summary Judgment Regarding Demand Letter Affirmative Defense is DENIED. Judgment is hereby entered in favor of Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Defendant shall go hence without delay. Plaintiff, THE CENTER FOR BONE & JOINT DISEASE, P.A., a/a/o William Wagner, shall take nothing by the action.
B. It is Further Ordered and Adjudged that the Plaintiff’s Motion to Abate and to File a “corrective” demand letter is DENIED;
C. The Court finds that the Defendant is entitled to fees and costs pursuant to Florida Statute §57.105(1) and accordingly, Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105(1) is hereby GRANTED. The Court will reserve on the actual amount of fees and costs to be awarded pending a hearing.
