County Civil Court:  INSURANCE – pre-suit requirements – complaint seeking personal injury protection benefits failed to show that conditions precedent for filing suit had been met – Florida Statutes, § 627.736(11)(2003) requires that an insurer must be provided with written notice of an intent to initiate litigation before a complaint can be filed – exhibits attached to the complaint failed to meet the requirements of a pre-suit demand letter  – order reversed.  Progressive Express Ins. Co. v. Broussard, Appeal No. 04-0035AP-88A (Fla. 6th Cir. App. Ct. Dec. 6, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

PROGRESSIVE EXPRESS

INSURANCE COMPANY,

                                    Petitioner/Defendant,

 

vs.                                                                                                Appeal No.04-0035AP-88A

                                                                                                    UCN522004AP000035XXXXCV

TRAVIS J. BROUSSARD,

                                    Respondent/Plaintiff.

____________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.   Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner/Defendant, Progressive Express Insurance Company (Progressive), seeks review of the trial court’s non-final Order on Plaintiff’s Motion for Re-hearing, entered March 29, 2004, in which the trial court rescinded its Order of Dismissal and allowed the Respondent/Plaintiff, Travis J. Broussard (Broussard), twenty days to file an Amended Complaint.[1]  The trial court also denied Progressive’s Motion to Dismiss the Complaint for Broussard’s failure to comply with the conditions precedent for filing suit set for by Florida Statutes, § 627.736(11)(2003).

            Initially, the Court finds that it does have jurisdiction to review Progressive’s common- law Petition for Writ of Certiorari as the order under review dispensed with a statutorily mandated pre-suit procedure which cannot be effectively remedied on postjudgment appeal.  See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). 

            Progressive argues that the trial court erred in not dismissing Broussard’s Complaint for failure to comply with the conditions precedent set forth in § 627.736(11).  In pertinent part, this section, states that “[a]s a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.”  See Fla. Stat. § 627.736(11)(a).  The notice must state that it is a “demand letter under s. 627.736(11)” and must state with specificity “the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.”  See Fla. Stat. § 627.736(11)(b)3.  After receipt of the demand letter, the insurer has 15 days to pay the overdue claim specified in the notice.  See  Fla. Stat. § 627.736(11)(d).  The Court finds that § 627.736(11) applies to the underlying action as the Complaint was filed on or about November 25, 2003, after the statute’s effective date of August 1, 2003.  See Fla. Stat. § 627.736, c. 2003-411, § 16.

            Accordingly, the Court finds that the exhibits attached to the Complaint do not meet the requirements of a demand letter as the correspondence does not state that it is a demand letter under § 627.736(11), does not provide the name of the medical provider who rendered to the insured the treatment, services, accommodations, or supplies that form the basis of the claim, nor includes an itemized statement of such medical services or lost wages.  Therefore, the Complaint should have been dismissed for failure to comply with the conditions precedent as statutorily mandated.  See e.g. Pearson Wellness Center Medical Corp. v. Nationwide Mutual Fire Ins. Co., 11 Fla. L. Weekly Supp. 1006a (Fla. Pinellas Cty. Ct. August 11, 2004)(granting defendant’s motion for summary judgment for plaintiff’s failure to comply with conditions precedent under § 627.736(11)); Feigenbaum v. Progressive American Ins. Co., 11 Fla. L. Weekly Supp. 737a (Fla. Sarasota Cty. Ct. May 11, 2004)(same); Alava v. Omni Ins. Co., 11 Fla. L. Weekly Supp. 446a (Fla. Marion Cty. Ct. March 15, 2004)(dismissing complaint without prejudice for failure to comply with § 627.736(11)); Ruiz v. Metropolitan Casualty Ins. Co., 11 Fla. L. Weekly Supp. 588a (Fla. Lee Cty. Ct. March 24, 2004)(emphasizing that a demand letter pursuant to § 627.736(11), is a condition precedent to filing suit).[2]  Broussard’s failure to provide Progressive with a demand letter deprived Progressive of the opportunity to pay the overdue claim and avoid being sued.

            Indeed, Broussard does not dispute Progressive’s claim that it failed to file a demand letter as required by § 627.736(11), but argues that the general averment set forth in the Complaint that all conditions precedent had been performed was sufficient to establish that fact for purposes of a hearing on a motion to dismiss.  The Court finds that this argument must fail.  While the Florida Rules of Civil Procedure, Rule 1.120(c), states that “it is sufficient to aver generally that all conditions precedent have been performed,” Rule 1.130(b) provides that “[a]ny exhibit attached to a pleading shall be considered a part thereof for all purposes.”  In the event of inconsistency between the allegations of the pleadings and the exhibits, the exhibits control.  See Authors’ Comments, Fla. R. Civ. P. Rule 1.120; see also Insurance Company of North America v. Poseidon Maritime Services, Inc., 561 So.2d 1360, 1361 (Fla. 3d DCA 1990)(finding that documents attached to the complaint were properly relied on by the trial court in ruling on the motion to dismiss).  As set forth above, the Complaint should have been dismissed as the exhibits did not meet the requirements of a demand letter. 

            The Court declines to address the remaining arguments presented by Broussard, including whether § 627.736(11) is constitutional and whether this section violates the single subject rule, which can be addressed by this Court upon final disposition of the proceedings below.   

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted.  The Order on Plaintiff’s Motion for Re-hearing is reversed and this cause is remanded for action consistent with this order and opinion.  It is further

            ORDERED AND ADJUDGED that the Petitioner’s Motion for Appellate Attorney’s Fees is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of December 2004.

                                               

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Judge Walt Fullerton

 

Rebecca O’Dell Townsend, Esquire

1901 North 13th Street, Suite 300

Tampa, FL  33605

 

J. Stanford Morse, Esquire

3131 66th Street North, Suite 2

St. Petersburg, FL  33710-1569



[1] It is undisputed that Broussard has not filed an Amended Complaint.

[2] There are no appellate decisions on point.  The Court finds these decisions informative as they involve the application of § 627.736(11) under similar facts.