9 Fla. L. Weekly Supp. 660b
Insurance — Personal injury protection — Notice of loss — No error in directing verdict for insurer when insured failed to introduce any evidence that his medical providers possessed required occupational licenses — Where insured not only pled generally that all conditions precedent to bringing suit have been met, but also alleged specifically that he gave notice of covered losses to insurer, insurer’s failure to specifically deny that condition precedent created by statutory requirement that notice of loss contain some statement that medical providers had required licenses had been met did not waive defense based on notice — Insurer’s general denial of specific allegation placed insured on notice that he would have to prove at trial that notice which complied with statute was given
PEDRO ORTEGA, Appellant, vs. UNITED AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 01-234 AP. L.C. Case No. 99-11258 SP 05. August 13, 2002. An appeal from the County Court, for Dade County, Florida, the Hon. Caryn Schwartz, Judge. Counsel: Marlene S. Reiss, for Appellant. Eric G. Belsky, for Appellee.
QUASHED. 28 Fla. L. Weekly D796a
(Before Gisela Cardone Ely, Joseph Farina, and Gerald Hubbart, JJ.)
(HUBBART, J.) The Appellant, Pedro Ortega, Plaintiff in the court below, sued the Appellee, United Automobile Insurance Company, Defendant below, under the personal injury protection (PIP) provisions of the policy he had with the Appellee. Specifically, he contended that he was entitled to have his medical expenses paid for by the Appellee under the terms of the policy after he was injured in an auto accident. When the Appellee refused to pay, he brought suit. At the trial, the trial court directed a verdict in favor of the Appellee when the Appellant failed to introduce any evidence that his medical care providers possessed the required occupational licenses. The Appellant argued in the trial court and argues before this Court that the trial court unlawfully expanded the definition of what constitutes a prima facie case. More specifically, Appellant argues that whether his medical providers were properly licensed should be viewed as an affirmative defense and not as part of his prima facie case. Appellant further contends that he was unfairly surprised since the Appellee did not raise the issue until the time of trial when it was too late. For the reasons stated below, we affirm the trial court.
Section 627.736(4)(b), Florida Statutes, provides in pertinent part:
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
Section 627.736(5)(e) provides:
No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph 4(b), [quoted above] an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph. (Emphasis supplied.)
Clearly, as a condition precedent for bringing a suit for PIP benefits, the insured must serve the insured with a notice that complies with the above statutes. That is, the notice must contain in addition to the bills some statement that the providers had the required licenses. And if such notice fails to note that the medical care providers are properly licensed, it is as if no notice has been filed.
In his complaint, the Appellant alleged generally that all conditions precedent for bringing the suit had been accomplished. The Appellee’s one word response in the answer was: “Denied.” Rule 1.120(c), R.Civ.P., provides:
In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
Normally, the Appellee’s failure to deny specifically that the condition precedent created by Sections 627.736(4)(b) and (5)(e) would mean that the Appellee had effectively waived any defense based on the notice. See United Bonding Insurance Co. v. Dura-Stress, Inc., 243 So.2d 244 (Fla. 2d DCA 1971). But this rule is applicable only where there is a general assertion that all conditions have been met.
However, Appellant also specifically alleged in his complaint that he gave notice of covered losses to the Appellee, to which the Appellee responded in its answer: “Denied.” In Mariner Village, Ltd., v. American States Ins. Co., 344 So.2d 1337 (Fla. 2DCA 1977) it was noted that:
This rule [Rule 1.120(c)] is applicable only to a general allegation of the performance of conditions precedent. Where there are allegations of specific facts, Fla.R.Civ.P. 1.110(c) permits the response by way of a simple denial. 344 So.2d at 1339.
This meant that the Appellee could simply deny the allegation that notice was given. At that point, the Appellee was free to contest the performance of a condition precedent, namely the giving of a legally sufficient notice.
Once the Appellee denied that such notice was given, the Appellant was on notice that he would have to prove at trial that a notice was given that complied with the above quoted statutes. When such proof was not forthcoming, the Appellee was entitled to a directed verdict.
Accordingly, the trial court’s ruling is affirmed.
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