County 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 (Fla. 6th Cir. App. Ct. Jan. 9, 2007).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

SALEM LEFILS,

Appellant,

vs. Appeal No. 06-0021AP-88B

UCN522006P000021XXXXCV

PROGRESSIVE CONSUMERS

INSURANCE COMPANY,

Appellee.

____________________________________________/

Appeal from Pinellas County Court

Judge Dorothy L. Vaccaro

Lorraine E. Robinson, Esquire

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 (Fla. 3d DCA 2006)(holding that complaint should have been dismissed when presuit requirements were not met). However, whatever the final order is called, the Court finds that there was not an adjudication on the merits of the case and that the trial court made clear that Lefils could re-file his Complaint once he meets the statutory pre-suit requirements. The standard of review for either a dismissal or summary judgment is the same, de novo. See Hervey v. Alfonso, 650 So.2d 644, 645 (Fla. 2d DCA 1995); Scott v. Progressive Express Insurance Company, 932 So.2d 475, 477 (Fla. 4th DCA 2006).

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).

The 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 (Fla. 2000)(explaining that clear and unambiguous language of statute must be given its plain and obvious meaning); Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994)(same). Since it is undisputed that Lefils served the wrong person, the Court finds that dismissal was appropriate. Lefils concedes that there is no case law that finds the service requirements of 627.736 can be waived if the insured can show that the insurer was not harmed by service of the notice on the wrong person. Therefore, it is,

ORDERED AND ADJUDGED that the Final Judgment is affirmed.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of December 2006.

________________________________

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

Lorraine E. Robinson, Esquire

1875 North Belcher Road

Clearwater, FL 33765

Robert H. Oxendine, Esquire

14428 Bruce B. Downs Blvd.

Tampa, FL 33613