Plaintiff must send a substantially correct demand.

Palm Beach County’s Judge Bosso Pardo recently ruled for the Defendant finding that demand letters need not be perfect but must substantially comply with the exactness requirement of the PIP Statute. Even though the Plaintiff’s Complaint was for less than $100.00, Plaintiff’s PIP Demand letter alleged almost $3,000.00 as overdue. Counsel reiterated at hearing that the action was filed for less than $100.00 and that the demand is still less than $100.00. The judge found that this was the exact point of the legislative intent of the presuit requirement. She reasoned that if the Plaintiff’s presuit demand had been for less than $100.00 the Defendant could have decided to pay the $100.00 to avoid suit. By failing to send a substantially correct demand, Plaintiff deprived Defendant of the opportunity to avoid the suit.

Plaintiff additionally tried to argue that Defendant had waived the defense of deficient presuit demand by failing to timely raise it. However, the Court rejected that argument. Any delays were of Plaintiff’s making. Plaintiff by its own dilatory conduct cannot create a waiver for the Defendant. Defendant had alleged in its initial Answer that Plaintiff failed to fulfill a condition precedent. Plaintiff filed a generic Motion to Strike affirmative defenses but never set the motion for hearing. Defendant sought discovery on the amount due and the Plaintiff continually delayed Defendant’s attempts to seek discovery. Plaintiff attempted to argue that due to the delays the statute of limitations have run so he cannot refile the Complaint. The court found that it would be inequitable for the court to find that the delays which were mostly of Plaintiff’s creation, resulted in a waiver of the Defendant’s affirmative defense of failure to satisfy a condition precedent. The Court granted Defendant’s Motion for Summary Judgment and reserved jurisdiction to determine entitlement of attorney’s fees and costs. (Chris Thompson PA a/a/o Elmude Cadau vs. Geico Indemnity Co., 502018SC011039XXXXMB)