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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No.04-0035AP-88A
TRAVIS J. BROUSSARD,
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trial court’s non-final Order on Plaintiff’s Motion for Re-hearing, entered March 29, 2004, in which the trial court rescinded its Order of Dismissal and allowed the Respondent/Plaintiff, Travis J. Broussard (Broussard), twenty days to file an Amended Complaint. 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).
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
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
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
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge Walt Fullerton
Rebecca O’Dell Townsend, Esquire
J. Stanford Morse, Esquire