27 Fla. L. Weekly Supp. 1049a
Online Reference: FLWSUPP 2712WATEInsurance — Personal injury protection — Demand letter — Insured failed to comply with condition precedent to filing suit by serving demand letter before claims became overdue — Because defective demand letter cannot be cured by passage of time, complaint must be dismissed without prejudice, not abated
RACHEL WATERMAN, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17006392, Division 51. January 13, 2020. Kathleen Mccarthy, Judge. Counsel: Michael J. Cohen, Cohen Legal Group, P.A., Weston, for Plaintiff. Kyle J. Phipps and Brian S. Goldstein, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR RECONSIDERATION IN PART AND GRANTINGDEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT IN PART
THIS CAUSE having come before the Court for consideration, on Defendant’s Motion for Reconsideration of this Court’s ruling on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that said Motions be, and the same are hereby GRANTED IN PART. This Court finds that Plaintiff failed to comply with a condition precedent to filing this action because its pre-suit demand letter was sent prior to when the claims at issue became overdue under section 627.736(4)(b), Florida Statutes, and in violation of section 627.736(10)(a), Florida Statutes. This Court also finds that Defendant did not waive this defense because Plaintiff did not timely file a Reply as required by Florida Rule of Civil Procedure 1.100(a), and there is binding authority holding to the contrary.[1] Finally, this Court finds that Plaintiff’s defective pre-suit demand letter cannot be cured merely by the passage of time because in order to pursue the claims at issue, Plaintiff would need to serve a new compliant pre-suit demand letter so that Defendant has a legally sufficient opportunity to avoid litigation of those claims, and to avoid subjecting Defendant to the risk that any payment of those disputed claims would constitute a confession of judgment. As such, this Court finds that dismissal, and not abatement, is the proper remedy in this case.[2]
Therefore, it is further ORDERED AND ADJUDGED that this case is hereby DISMISSED without prejudice. Plaintiff shall serve a pre-suit demand letter in compliance with section 627.736(10), Florida Statutes, prior to filing any new action for the claims at issue in this case.
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1See State Farm Mut. Ins. Co. v. Douglas Diagnostic Center, Inc., 25 Fla. L. Weekly Supp. 942b (17th Cir. Appellate, Broward County, 2017) (holding that trial court erred in ruling that insurer waived its right to assert demand letter defense when insurer continued to assert the defense in its answer and summary judgment motion).
2See Progressive Express Ins. Co., Inc. v. Menendez, 979 So.2d 324, 333 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a] (holding that where a plaintiff fails to comply with a statutory condition precedent, the lawsuit is not merely premature, and dismissal, not abatement, is the proper remedy); City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D760a] (recognizing that other courts have repeatedly affirmed that failure to comply with a statutory condition precedent requires dismissal, absent waiver or estoppel); James D. Shortt, M.D., P.A. a/a/o Betty Coyle v. State Farm Fire and Casualty Co., 23 Fla. L. Weekly Supp. 769a (12th Cir., Sarasota County, 2015) (holding that abatement of PIP action is not the proper remedy when the Plaintiff would be required to serve a new pre-suit demand letter); Richard W. Merritt, D.C., P.A. a/a/o Eileen Mendenhall v. Auto Club South Ins. Co., 22 Fla. L. Weekly Supp. 734b (10th Cir., Polk County, 2014) (denying Plaintiff’s Motion to Abate when its defective pre-suit demand letter could not be cured merely by the passage of time).
