16 Fla. L. Weekly Supp. 770a
Online Reference: FLWSUPP 168DIAZ
Insurance — Personal injury protection — Demand letter — Premature — Insurer waived notice requirement and is estopped from raising issue of premature notice where insurer admitted that presuit notice requirement had been met and did not file any affirmative defense specifically pleading the failure to comply with pre-suit notice requirements — Motion for rehearing is granted and directed verdict entered in favor of insurer is reversed
AFO IMAGING, INC. (As assignee of PEDRO DIAZ), Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough, Civil Division. Case No. 06 11149, Division L. June 10, 2009. Joelle Ann Ober, Judge. Counsel: Bradley D. Souders, Bradley D. Souders, PA. Robert H. Peterson.
ORDER GRANTINGPLAINTIFF’S AMENDED MOTION FOR REHEARING
THIS CAUSE having been noticed before the Court this Tuesday, May 26, 2009 to hearing Plaintiff’s Amended Motion For Rehearing and the Court having reviewed the record, argument of counsel and otherwise being fully advised, it is hereupon:
ORDERED AND ADJUDGED the Court GRANTS Plaintiff’s Amended Motion For Rehearing.
The Plaintiff’s claim arises from a motor vehicle collision of January 23, 2006. On February 11, 2006, the Plaintiff, AFO Imaging, Inc. (“AFO Imaging”) provided x-ray studies for the insured and accepted an assignment of the insured personal injury protection “PIP” benefits. On February 24, 2006, Plaintiff, AFO Imaging, submitted the billing, radiology report and assignment to the Defendant, Mercury Insurance Company of Florida, Inc. (“Mercury”) for payment. On March 22, 2006, the Plaintiff, AFO Imaging, issued a pre-suit demand letter to the Defendant, Mercury, resubmitting the bills to the carrier, without success. By April 5, 2006, the Defendant issued a correspondence acknowledging receipt of the Plaintiff’s pre-suit demand letter simply stating: “Unable to make payment, claim is under investigation” enclosing an Explanation of Benefits essentially restating the same. At all times, the Defendant did not give any specific response to the demand nor was there any challenge to the validity of the demand or state any specific reason for denying the subject billing.
On May 5, 2006, the Plaintiff, AFO Imaging, filed suit against the Defendant, Mercury for the outstanding benefits. Plaintiff served the Complaint and discovery pleadings on the Defendant, including a Plaintiff’s Request For Admissions, asking the Defendant to admit the Plaintiff met all of the pre-suit notice requirements of Section 627.736(11), Florida Statutes. On June 23, 2006, the Defendant filed an Answer and Affirmative Defenses generally denying the allegations of the Complaint and did not raise any affirmative defense alleging the Plaintiff failed to meet any statutory pre-suit notice requirements. By August 30, 2006, the Defendant, Mercury, filed a formal response to the Plaintiff’s Request For Admissions, admitting the Plaintiff met all requirements of Section 627.736(11), Florida Statutes.
In February 27, 2007, the Defendant, through counsel, filed a Defendant’s Motion For Leave To Amend Answer and Affirmative Defenses. Although the Plaintiff’s counsel replied with a correspondence letter to stipulate to the motion, the Defendant did not draw or file a stipulation, nor any proposed order, and did not file the proposed Amended Answer And Affirmative Defenses. Thus, amended defenses were not filed.
On September 11, 2007, this Court entered the Uniform Order Setting Case For Trial and Pretrial, setting a jury trial for December 10, 2007, which was later continued by a separate order entered a week before the trial, on December 5, 2007.
On January 22, 2008, the Plaintiff filed a Notice of Filing both the Plaintiff’s Request For Admissions and the related Defendant’s Responses To The Plaintiff’s Request For Admissions to the Court file.
On October 16, 2008, the Court entered a second order re-setting the case for jury trial on April 6, 2009.
On March 3, 2009, (a month before jury trial) the Defendant, Mercury, filed a Defendant’s [Second] Motion For Leave To Amend Affirmative Defenses. Likewise, on March 24, 2009, (two weeks before jury trial) the Defendant, Mercury, filed a [Third] Defendant’s Motion For Leave To Amend Affirmative Defenses and Counterclaims, which where denied by the Court for being untimely and prejudicial to the Plaintiff.
On April 6, 2009, the parties began a three (3) day jury trial in this matter. During the Plaintiff’s case in chief, on the third day of trial, the Plaintiff read into evidence the Plaintiff’s Request For Admissions and the Defendant’s responses, including the Defendant’s response admitting the Plaintiff met all pre-suit notice requirements of Section 627.736(11), Florida Statutes. At the same time, the Defendant sought leave of the Court to withdraw or amend the admissions, without success. Afterwards, only after the Plaintiff presented all evidence at trial, and only after the close of the Plaintiff’s evidence, the Defendant moved for a directed verdict by arguing the Plaintiff did not meet the pre-suit notice requirements of Section 627.736(11), arguing the Plaintiff, AFO Imaging, issued a premature demand letter. The Court denied the motion and then afterwards, the Court conducted additional research finding Faith Medical Group a/a/o Ana Brito v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 1203a. (Miami-Dade County July 9, 2008) (holding where a pre-suit demand letter is sent less than 30 days after an insurer’s receipt of bills was premature, and it cannot be cured by passage of time); and upon this authority, the Court granted the Defendant’s Motion For Directed Verdict.
Within ten (10) days, the Plaintiff filed a Plaintiff’s Motion For Rehearing; and then filed a Plaintiff’s Amended Motion For Rehearing again citing the timeline above and additional legal authority. Since the trial, the Plaintiff, through counsel conducted additional legal research on the issue of whether a statutory condition precedent is jurisdictional; or, whether such requirements can be waived by actions or inactions of a party to a lawsuit; or further, whether a party may be estopped from raising such requirements.
In Ingersoll v. Hoffman, 589 So.2d 223 (Fla. 1991) the Florida Supreme Court, in a dental malpractice claim, addressed the issue of whether the pre-suit notice and screening requirements of Section 768.495(1), Florida Statutes are jurisdictional; and, whether the failure to comply with the pre-litigation notice requirements of Section 769.57 may be excused by a showing of waiver or estoppel. The Florida Supreme Court held such notice requirements are not jurisdictional; and, such requirements may be excused by a showing or estoppel or waiver. The Court cited such pre-suit notice requirements are more than mere technicalities, citing the legislature established a comprehensive procedure designed to facilitate the resolution of medical malpractice claims. However, the Court also cited the dentist only made a general denial of the allegations of conditions precedent, did not plead any failed conditions precedent with “specificity” or “particularity”, such allegations are considered admitted and such a Defendant cannot later assert that a condition precedent has not been met.
Gardner v. Broward County, Florida, 631 So.2d 319 (4th DCA 1994), the Fourth District Court of Appeal addressed a similar fact pattern and issue. In Gardner, the Plaintiff served a request for admission on the county, asking it to admit the Plaintiff satisfied the notice requirements of the sovereign immunity statute, 768.28(6), Florida Statutes. The Defendant objected to the request and afterwards when ordered to answer, it responded “without knowledge”. Afterwards, only at the time of trial, the Defendant specifically pointed out the notice was defective, the trial court granted the motion for directed verdict and the appeal followed. In Gardner, the appellate court, citing Ingersoll, chose not to decide whether the pre-suit notice was defective; but instead, expressly concluded the Defendant was estopped from raising the issue. Citing Ingersoll, the appellate court cited Florida Rule of Civil Procedure 1.120(c) “requires . . . a denial that a condition precedent has occurred “shall be made specifically and with particularity”, holding a defendant’s failure to deny the occurrence of the condition precedent with particularity is a waiver. Additionally, the Court rationalized:
No longer are we concerned with the “tricks and technicalities of the trade”. The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.
And as Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc. 368 So.2d 1337 (3rd DCA 1979), the “gotcha” school of litigation will not be tolerated.
See also, Prestige Development Group, Inc. v. Russell, 612 So.2d 691 (1st DCA 1993) (Homeowners who made general denial of conditions precedent waived compliance of statutory requirements); and Bryant v. Duval County Hospital Authority, 502 So.2d 459 (1st DCA 1987) (citing numerous decisions holding the statutory pre-suit notice provisions of Section 768.28(6)(a) can be waived) (rejecting appellees’ condition that the notice requirements of Section 768.28(6) are jurisdictional) (holding “the notice of the Department of Insurance of a claim against the DCHA is a condition precedent to suit which, in proper circumstances, may be waived”).
Given the legal authority above, the Court finds the pre-suit notice requirements of Section 627.736(11), Florida Statutes may be waived by the actions or inactions of a party; and, a party may be estopped from raising such an issue. Also given the undisputed timeline as cited by the Plaintiff’s Amended Motion For Rehearing, the Court finds the Defendant waived the defect complained of, the Defendant admitted the notice requirements had been met, the Defendant did not actually file any affirmative defense specifically pleading with specificity or particularity any failed conditions precedent of the pre-suit notice requirements; and by not doing so, did not properly plead any failed condition precedent. Thus, the Defendant, by its actions or inactions, waived such requirements and is estopped from raising them specifically at trial only after the plaintiff rested its case. Accordingly, based on the timeline and such legal authority as cited above, the Court grants the Plaintiff’s Motion For Rehearing, grants the relief requested by reversing the directed verdict previously entered in favor of the Defendant and will re-set the case for trial upon motion, if necessary.