28 Fla. L. Weekly Supp. 239a
Online Reference: FLWSUPP 2803LDAVInsurance — Personal injury protection — Demand letter — Defects — Motion to abate PIP case to allow service of new demand letter is granted where error in original demand letter was first raised by insurer in its affirmative defenses and medical provider immediately moved to abate action — Extension of time to respond to proposal for settlement is granted
WILLIAM H. MYONES, DMD PA, a/a/o Lana Davidson, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE19023961, Division 51. May 6, 2020. Kathleen Mccarthy, Judge. Counsel: Howard W. Myones, Myones Legal, PLLC, Fort Lauderdale, for Plaintiff. Michael S. Walsh, Kubricki Draper, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO ABATE TO PERMIT SERVICE OF STATUTORY30 DAY DEMAND LETTER AND MOTION FORENLARGEMENT OF TIME TO RESPOND TODEFENDANT’S PROPOSAL FORSETTLEMENT SERVED APRIL 1, 2020
THIS CAUSE came before the Court for consideration on the Plaintiff’s Motion to Abate to Permit Service of Statutory 30 Day Demand Letter and Plaintiff’s Motion for Enlargement of Time to Respond to Defendant’s Proposal for Settlement Served April 1, 2020, and the court, being fully advised in the premises, rules as follows:
Plaintiff submitted a Statutory Demand Letter to State Farm on July 30, 2019. State Farm acknowledged receipt thereof and responded on September 23, 2019 that coverage was still being investigated. On October 15, 2019, the Plaintiff filed the instant lawsuit. After filing a number of motions for extension of time to respond to the complaint, the Defendant filed its answer and affirmative defenses on April 13, 2020. Within the affirmative defenses was the first allegation by State Farm that there was a problem with the Plaintiff’s Statutory Demand letter. As stated by Plaintiff’s lawyer, there was a scrivener’s error in the body of Plaintiff’s demand letter regarding the total amount billed. Immediately upon receipt of the Defendant’s Affirmative Defense, on the same day, April 13, 2020, Plaintiff filed its motion to abate to permit service of Statutory 30 Day Demand Letter requesting this Court to allow an abatement to correct the scrivener’s error in its Statutory Demand Letter. Plaintiff relies upon Angrad v. Fox, 552 So.2d 1113 (Fla. 3rd DCA 1989)(premature filing of medical malpractice action may be cured through abatement to allow passage of requisite presuit time after notice); Dukanauskas vs. Metropolitan Dade County, 378 So.2d 74, 76 (Fla. 3rd DCA 1979)(no attempt to provide notice was made in sovereign immunity case during limitations period, thereby precluding abatement to cure); Wright v. Life Insurance Company of Georgia, 762 So.2d 992 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1527b] (proper remedy for premature litigation is abatement or state of claim); Thomas v. Suwannee County, 734 So.2d 492 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D1186b] (General rule is that action filed prematurely should be abated until cause of action matures, rather than dismissed). See, Central Palm Beach Imaging, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 1042a (Fla. 17th Jud. Cir. 2010); Physicians Rehab Group v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 123b (Fla. 11th Jud. Cir. 2009).
Defendant relies upon Progressive Exp. Ins. Co., Inc. v. Menendez, 979 So.2d 324 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D811a] for the proposition that when a plaintiff fails to comply with a statutory condition precedent, the lawsuit is not merely premature, and dismissal, and not abatement is the proper remedy. However, that case was quashed by the Supreme Court in Menendez v. Progressive Exp. Ins. Co., Inc., 35 So.3d 873 (Fla. 2010) [35 Fla. L. Weekly S222b]. Furthermore, the 3rd DCA held in Menendez that Plaintiff waived its right to move for an abatement because of its own inaction, not because it was not an available remedy. Specifically, the 3rd DCA states that after receiving notice of the demand letter issue from Defendant’s Answer, Amended Answer and Motion for Summary Judgment, “the plaintiffs could have asked the trial court to abate the premature action until they complied with the statute.” Therefore, the Court does not find Defendant’s argument convincing.
In this case, the Plaintiff moved to abate this action immediately upon receiving notice that State Farm had an issue with the content of the demand letter. This Court agrees with the Honorable Robert W. Lee in Central Palm Beach Imaging, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 1042a (Fla. 17th Jud. Cir. 2010) and orders that this case be abated for 60 days from the date of this Order.
Furthermore, Plaintiff’s motion for extension of time to respond to the proposal for settlement served on April 1, 2020 is granted as Plaintiff timely filed its Motion for Extension of Time pursuant to Fla. R. Civ. P., Rule 1.090, and has shown good cause. Koppel v. Ochoa, 243 So.3d 886 (Fla. 2018) [43 Fla. L. Weekly S225a].
ACCORDINGLY, it is hereby ORDERED AND ADJDUGED that Plaintiff’s Motion to Abate is GRANTED. Plaintiff shall submit an amended demand letter within 20 days of this hearing to both Defendant’s counsel of record, as well as the individual specified by the insurer for the purposes of receiving Pre-Suit Demand letters, in compliance with Florida Statute, Chapter 627.736(10). If payment is properly made pursuant to F.S. 627.736(10) within 30 days of receipt of the amended demand letter, it shall not constitute a confession of judgment and State Farm shall not be responsible for attorney’s fees or costs under F.S. 627.428. Assuming Plaintiff complies with the deadline to submit its amended demand letter, this case shall reopen 60 days from the date of this Order.
Plaintiff’s Motion for Extension to Respond to the Proposal for Settlement is GRANTED. The time to respond to the Defendant’s proposal for settlement is extended to 10 days after the case reopens after the abatement period ends.
