Civil Court: INSURANCE – summary judgment – trial court did not err in
granting summary judgment in favor of insurer when insured failed to comply
with the service requirements of Florida Statutes, section 627.736(11)(c) – unambiguous
language of statute required that notice of suit be served on person designated
by the insurer - Final Judgment affirmed.
Lefils v. Progressive Consumers
Ins. Co., Appeal No. 06-0021AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 06-0021AP-88B
Judge Dorothy L. Vaccaro
Attorney for Appellant
Robert H. Oxendine, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Salem Lefils (Lefils), from the Final Judgment, entered February 20, 2006. Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.
The record shows that Lefils filed its Complaint against Progressive on February 22, 2005. Prior to the date the lawsuit was filed, Progressive, pursuant to the requirements of Florida Statutes, section 627.736(11)(c), designated with the Florida Department of Insurance, Doug Helton, located at 4221 West Boy Scout Boulevard, Suite 400, Tampa, Florida, as the corporate representative of Progressive authorized to receive 15-day PIP pre-suit demand notices. Prior to filing the lawsuit, Lefils never served Mr. Helton with the demand notice. Rather, Lefils served a different individual, Thomas Scalisi, located at a different address. In its Answer to the Complaint, Progressive asserted Lefils’ non-compliance with section 627.736(11)(c) as an affirmative defense. Lefils did not file a reply asserting that Progressive had waived or was estopped from asserting this affirmative defense.
Progressive then filed a motion for summary judgment, based on the same argument, which the trial court granted on February 20, 2006. In granting summary judgment, the trial court stated, in # 4: “The Defendant’s motion for summary judgment is hereby granted and pursuant to the Court’s ruling, the Plaintiff shall not re-file the instant action until submitting a complaint pre-suite demand letter to the Defendant in compliance with Florida Statute 627.736(11).”
The issue before this Court is whether the
trial court erred in granting summary judgment in favor of Progressive when
Lefils failed to comply with the service requirements of section
627.736(11)(c). Initially, the Court
finds that dismissal of the Lefils’ Complaint for failure to meet the pre-suit
requirements would have been appropriate in this case, not summary
judgment. See Mount Sinai
Medical Center v. Fotea, 937 So.2d 146, 147 (
In reviewing the issue presented, Florida Statutes, section 627.736(11)(c), states, in pertinent part:
Such notice [of intent to initiate litigation] must be sent to the person and address specified by the insurer for purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office designation of the name and address of the person to whom notices pursuant to this subsection shall be sent which the office shall make available on its Internet website. The name and address on file with the office pursuant to s. 624.422 shall be deemed the authorized representative to accept notice pursuant to this subsection in the event no other designation has been made. (emphasis added).
statutory language is clear and unambiguous and the trial court had no
discretion but to follow the requirement that the notice be served on the
person specified by the insurer. See
Rollins v. Pizzarelli, 761 So.2d 294, 297 (
ORDERED AND ADJUDGED that the Final Judgment is affirmed.
ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
ANTHONY RONDOLINO PETER RAMSBERGER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Judge Dorothy Vaccaro
Robert H. Oxendine, Esquire