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Filing # 140953065 E-Filed 12/27/2021 12:50:14 PM
THE RIGHT SPINAL CLINIC, INC. IN THE COUNTY COURT IN AND FOR
A/A/O (HERNANDEZ, LOIDA) MIAMI-DADE COUNTY FLORIDA
Plaintiff, CASE NO. 21-009772-CC-21
vs.
GEICO GENERAL INS. CO.
Defendant.
________________________________/
______________________________________________________________________________
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF
CONDITIONS PRECEDENT – DENIAL IN ANSWER
______________________________________________________________________________
COMES NOW the Plaintiff, THE RIGHT SPINAL CLINIC, INC.
A/A/O (HERNANDEZ, LOIDA) , by and through their undersigned attorney, and moves this
Honorable Court for an Order Granting its Motion for Partial Summary Judgment on the Issue of
Conditions Precedent, Denial in Answer, against Defendant, GEICO GENERAL INS. CO., and
as grounds therefore states:
I. STATEMENT OF FACTS
1. This is an action for overdue personal injury protection (“PIP”) benefits under a
policy of insurance issued by Defendant.
2. On or about 3/4/2020, Loida Hernandez was injured in an automobile accident.
3. At the time of the accident, Loida Hernandez had PIP coverage under a policy of
insurance issued by the Defendant, which inured to Loida Hernandez’s benefit.
4. Loida Hernandez received medical treatment for Claimant’s injuries at the
Plaintiff’s place of business.
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |1
5. The Defendant denied in its Answer that Plaintiff has complied with all required
conditions precedent prior to filing of the above styled lawsuit.
II. STANDARD OF REVIEW
Pursuant to the newly amended Florida Rule of Civil Procedure 1.510(a) “[t]he
Court shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P.
1.510(a). Summary judgment puts an end to useless and costly litigation where there is no
genuine issue of material fact to present to a jury. Petruska v. Smartparks-Silver Springs, Inc.,
914 So. 2d 502 (Fla. 5th DCA 2005). Florida has adopted almost in its entirety Federal Rule 56.
In applying this new Rule 1.510 the Court is to look to Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574 (1986), commonly referred to as the “Celotex trilogy”, as
well as the overall body of case law interpreting Rule 56.
In Celotex, the Supreme Court of the United States held
Under Rule 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.” In our view, the plain language of
Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. In such a situation, there can be
“no genuine issue as to any material fact,” since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party is
“entitled to a judgment as a matter of law” because the
nonmoving party has failed to make a sufficient
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |2
showing on an essential element of her case with
respect to which she has the burden of proof. “[T]h[e]
standard [for granting summary judgment] mirrors the
standard for a directed verdict under Federal Rule of
Civil Procedure 50(a)....” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.
2d 202 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552–53, 91 L. Ed. 2d
265 (1986). In Anderson, the Supreme Court of the United States made clear
[A]t the summary judgment stage the judge's function is
not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a
genuine issue for trial. As Adickes, supra, and Cities
Service, supra, indicate, there is no issue for trial unless
there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. Cities
Service, supra, 391 U.S., at 288–289, 88 S.Ct., at 1592.
If the evidence is merely colorable, Dombrowski v.
Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577
(1967) (per curiam), or is not significantly probative,
Cities Service, supra, at 290, 88 S.Ct., at 1592,
summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505,
2511, 91 L. Ed. 2d 202 (1986).
In Matsushita, the Supreme Court of the United States further explained that
to survive a motion for summary judgment there must be a “genuine” issue of
material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585,
106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986). Thus, the “opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.” See
id. In the language of the Rule, the non-moving party must come forward with
“specific facts showing that there is a genuine issue for trial.” See id. (quoting Fed.
Rule Civ. Proc. 56(e)).
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |3
Simple allegation in an unsworn complaint is insufficient to overcome a denial in an answer.
See e.g., Feinman v. City of Jacksonville, 356 So. 2d 50 (Fla. 1st DCA 1978); Daeda v. Blue Cross
& Blue Shield of Florida, Inc., 698 So. 2d 617 (Fla. 2d DCA 1997). Therefore, a motion for
summary judgment is the proper vehicle to overcome a denial in a complaint. See e.g., Stop &
Shoppe Mart Inc. v. Mehdi, 854 So. 2d 784 (Fla. 5th DCA 2003). In addition, a denial in an answer
is sufficient to dispute the validity of a claim, and when a plaintiff fails to prove its claim, the trial
court cannot grant the relief requested in the complaint. See Pacific American Ins. Co. v. Red Door
Motors, Inc., 497 So. 2d 721(Fla. 2nd DCA 1986).
On the other hand, “affirmative defenses are pleas by way of confession and avoidance.
They admit the allegations of the plea to which they are directed and allege additional facts that
avoid the legal effect of the confession.” Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.
1975).
The First District Court elaborated:
[I]t is any matter which avoids the action, and which plaintiff is not
bound to prove in the first instance in support of it, but which
under the rules of evidence the defendant must affirmatively
establish. A defense that concedes that the plaintiff once had a
good cause of action, but insists that it no longer exists, involves a
new matter. If what is alleged amounts to a denial, it is not a new
matter; nor is it a new matter if the facts alleged might have been
proved under a denial.
Affirmative defenses are in the nature of confession and avoidance. Merrill, Lynch,
Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311 (Fla. 5th DCA 1985). They are pleas that
assert that even if the Plaintiff’s case is taken as true, the Plaintiff can have no recovery because
of the ultimate facts therein pled. Affirmative defenses do not simply deny facts of the opposing
party's claim, but, rather, they raise some new matter which defeats an otherwise apparently valid
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |4
claim. Wiggins v. Portmay Corp., 430 So. 2d 531 (Fla. 1st DCA 1983).
III. MEMORANDUM OF LAW
A. Plaintiff complied with the conditions precedent prior to filing of the above styled
lawsuit/Plaintiff’s Demand Letter was compliant with the applicable PIP Statute
Florida Statute 627.736 (10)(a) states, “As 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.” The statute goes on to state in subsection (b):
The notice required shall state that it is a “demand letter under
§627.736 (10)” and shall state with specificity:
1. The name of the insured upon which such benefits are being sought,
including a copy of the assignment giving rights to the claimant if the
claimant is not the insured.
1. The claim number or policy number upon which such claim was
originally submitted to the insurer.
2. To the extent applicable, the name of any medical provider who
rendered to an insured the treatment, services, accommodations, or
supplies that form the basis of such claim; and an itemized statement
specifying each exact amount, the date of treatment, service, or
accommodation, and the type of benefit claimed to be due. (emphasis
added).
The statute is clear and unambiguous. It is well settled in Florida that courts will not
subject statutes to judicial construction where the statute’s plain language is unambiguous. State
v. Jett, 626 So.2d 691 (Fla. 1993). Section 627.736 (10)(a) is clear. The statute mandates that
the insurer must be put on notice. The statute mandates that an itemized statement which
specifies each exact amount, the date of treatment, service, or accommodation, and the type of
benefit claimed to be due. The statute does not mandate anything further, such as a grand total
amount due.
The Statute mandates that an itemized statement must be specific so that the insurer is
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |5
informed as to exact amount charged for each service, the date of the treatment, and the type of
benefit. The statute further states, “A completed form satisfying the requirements of paragraph
(5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.”
See Florida State Statute §627.736 (10)(b)3. Upon review of section 627.736 (5)(d), it states
that, “All statements and bills for medical services. . . shall be submitted to the insurer on a
properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form. . .” The
CMS 1500 form itself simply shows the amount billed. Thus, the statute itself simply requires
that the insurer be placed on notice of the amount billed.
The demand letter submitted to the Defendant contained an itemized statement which
contained the following: the date of service, the exact amount charged for each service, and the
type of benefit, i.e., the CPT code detailing a description of the service.
No other party than the Defendant is in a better position to know the amount that
Defendant paid on the medical bills. The Plaintiff fulfilled its duty to put Defendant on notice as
to what was billed to Defendant. For Defendant to claim that they in turn are unaware of what
they paid, or that they are unable to calculate the difference between what the provider billed and
what Defendant paid, is indefensible.
In Defendant’s Answer and denial of Plaintiff’s allegations that Plaintiff has complied
with the conditions precedent prior to filing of the above styled lawsuit, the Defendant does not
cite any authority on all fours to support any position that the subject demand letter was invalid.
Therefore, as Defendant was properly put on notice of the medical bills pursuant to the
statute, Plaintiff’s Motion for Summary Judgment must be granted.
B. Even if Plaintiff’s Demand Letter was not compliant, Defendant waived any claim
of defect
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |6
Defendant responded to the subject demand letter and failed to allege in its response that
Plaintiff’s demand letter was invalid and/or non-compliant with the PIP Statute.
At no time did Defendant allege that it was in need of more specificity as to the amount
of the medical bills. Instead, Defendant had the opportunity to review the claim, made the
decision to pay some bills and not others or to make no payment, which is direct evidence that
Defendant knowingly chose to defend against a potential lawsuit.
Florida courts have repeatedly held that the Defendant’s conduct can act as a waiver to
defects in notice requirements. In Brooks v. City of Miami, 161 So. 2d 675 (Fla. 3d DCA 1064),
where the Defendant responded to a defective notice by stating that “the matter was being
processed by reference to an insurance company”, the Third District Court of Appeal held, “We
think that the plaintiff was justified in believing that she had done all that was necessary in
notifying the City of her claim.” Id. at 677. See also Rabinowitz v. Town of Bay Harbor
Islands, 178 So. 2d 9 (Fla. 1965). Thus, the Defendant was estopped from asserting the lack of
notice as a defense. Id.
Within the Brooks case, the Third District Court of Appeal discussed and relied upon
other cases to reach its decision. First, the Court discerned the purpose of the notice requirement
regarding a municipality claim. The purpose of requiring notice be given before a lawsuit is
filed is to give the defending party the opportunity to decide whether the claim has merit, and
therefore, whether to avoid litigation by paying the claim. Id., citing Sarasota v. Colbert, 97 So.
2d 872 (Fla. 2nd DCA 1957). Clearly in the case at bar, the demand letter put Defendant on
notice with enough information for Defendant to decide to pay some of the medical bills while
still disputing payment of other medical bills, or decide to deny the claim in its entirety, and thus,
defend against a potential lawsuit.
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |7
Those other cases discussed within Brooks are Hammontree v. City of Tampa, 108 Fla.
343, 146 So. 556 (Fla. 1933)(when notice to a defending party substantially complies with
statutory notice requirements so as to accomplish the purpose of the requirements, then the
ensuing lawsuit is permitted to stand); Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So.
885 (Fla. 1931) (when a defending party decides to litigate the matter on its merits, the defending
party waives any objections to the form of the notice); Tillman v. City of Pompano Beach, 100
So. 2d 53 (Fla. 1957) (where a defending party has actual notice of a claim, conducted an
investigation the claim and make a determination whether to defend or settle a claim, the
defendant party is estopped from raising the defense of lack of written notice). All of these cases
demonstrate that where the defending party has been put on notice with an opportunity to make a
decision whether to settle a claim or litigate it, Florida courts support defective notices as the
purpose of the notice requirement has been fulfilled. While in the case at bar the notice given to
Defendant was not defective, assuming in arguendo that it was defective, Defendant has
demonstrated in its reply that it was fully able to investigate the claim and make the decision to
pay some or none of the outstanding medical bills, and defend not paying the remainder of the
medical bills. Under Florida law, this bars Defendant from asserting the defense of defective
notice.
Further, in Magee v. City of Jacksonville, 87 So. 2d 589, 581-592 (Fla. 1956), the Court
stated:
. . . it appears to us that a just claim, if one exists, should not be
denied by the application of strained constructions and the
imposition of requirements for minute detail where an examination
of the entire notice reveals tat it furnishes to the City officials
adequate information within the framework of the statutory
requirements in sufficient detail to enable them to make a thorough
investigation of the asserted claim.
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |8
While the above cases are municipality cases, a similar line of cases exist concerning
notice requirements under the medical malpractice statutes. See Patry v. Capps, 633 So. 2d 9
(Fla. 1994).
Moreover, the 11th Judicial Circuit, Appellate Division, in and for Dade County
addressed this issue in United Auto. Ins. Co. v. Perez, 18 Fla. L. Weekly Supp. 31a (11th Cir.
November 8, 2010). In Perez, the medical provider sent a pre-suit demand to the insurer.
However, thereafter the patient sued the insurance company for unpaid medical benefits. “The
insurance company’s sole argument that it is not responsible for the medical expenses at issue is
that the insured did not send a pre-suit demand himself.” In rejecting the insurer’s argument the
Court stated “insurers who reject claims are required to notify claimants as to why such claims
are being rejected, an insurer who fails to complaint of a defective demand letter until after suit is
filed waives the defense.” See also Florida Statute §627.736(4)(b) and Stand Up MRI of Boca
Raton, P.A. v. United Auto Ins. Co., 14 Fla. L. Weekly Supp 886a (Fla. Broward Cty. Ct. July 3,
2007). The Court further described the potential problems with the Perez demand letter as
follows:
The demand letter sent in the instant case was certainly not perfect.
It was written on the letterhead of the medical provider and, while
it does list the name of the patient, it does not state whether
payment should be made to the provider or the patient. Whether
the medical provider was demanding payment on its own behalf
and simply forgot to attach an assignment, or whether it was
demanding that the insured be paid was not clear from the letter.
However, this was a situation that could have easily been remedied
by the insurance company. All that it had to do was make an
inquiry about who was requesting the payment or explain that the
reason it was not making the payment was that the demand letter
did not have an assignment attached or set forth who should be
paid. Instead, the insurance company waited until after suit was
filed to make known the reason it did not pay the bill, by including
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |9
the existence of the defective demand letter in its amended
affirmative defenses. By failing to raise that easily remedied
issue until after suit was filed, the insurance company waived
it.
Id. Here, the subject demand letter with attached assignment of benefits and itemized
statement, clearly included more information than the demand letter addressed in Perez. Thus, it
is clear in the case at bar that Defendant was given notice of the claim, had the opportunity to
assess the validity of the claim, and made a conscious decision to not pay all of the medical bills.
Therefore, Plaintiff’s Motion for Partial Summary Judgment must be Granted.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order
Granting Plaintiff’s Motion for Summary Judgment on the issue of compliance with conditions
precedent/Defendant’s Denial in Answer, in its entirety, and award Plaintiff reasonable
attorney’s fees and costs for litigating this issue.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing
Portal to be served upon the following persons at the designated email address(es) for service:
Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road,
Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 27th day of December,
2021.
The Evolution Law Group, P.A.
2700 Glades Circle, Suite 145
Weston, FL 33327
Telephone (954) 840 6665
Facsimile (954) 840 6997
ServiceELG@theevolutionlawgroup.com
Attorney for Plaintiff
/s/ George Milev
George Milev, Esquire
Florida Bar No. 432120
Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |10
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Filing # 140953065 E-Filed 12/27/2021 12:50:14 PM THE RIGHT SPINAL CLINIC, INC. IN THE COUNTY COURT IN AND FOR A/A/O (HERNANDEZ, LOIDA) MIAMI-DADE COUNTY FLORIDA Plaintiff, CASE NO. 21-009772-CC-21 vs. GEICO GENERAL INS. CO. Defendant. ________________________________/ ______________________________________________________________________________ PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF CONDITIONS PRECEDENT – DENIAL IN ANSWER ______________________________________________________________________________ COMES NOW the Plaintiff, THE RIGHT SPINAL CLINIC, INC. A/A/O (HERNANDEZ, LOIDA) , by and through their undersigned attorney, and moves this Honorable Court for an Order Granting its Motion for Partial Summary Judgment on the Issue of Conditions Precedent, Denial in Answer, against Defendant, GEICO GENERAL INS. CO., and as grounds therefore states: I. STATEMENT OF FACTS 1. This is an action for overdue personal injury protection (“PIP”) benefits under a policy of insurance issued by Defendant. 2. On or about 3/4/2020, Loida Hernandez was injured in an automobile accident. 3. At the time of the accident, Loida Hernandez had PIP coverage under a policy of insurance issued by the Defendant, which inured to Loida Hernandez’s benefit. 4. Loida Hernandez received medical treatment for Claimant’s injuries at the Plaintiff’s place of business. Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |1 5. The Defendant denied in its Answer that Plaintiff has complied with all required conditions precedent prior to filing of the above styled lawsuit. II. STANDARD OF REVIEW Pursuant to the newly amended Florida Rule of Civil Procedure 1.510(a) “[t]he Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). Summary judgment puts an end to useless and costly litigation where there is no genuine issue of material fact to present to a jury. Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502 (Fla. 5th DCA 2005). Florida has adopted almost in its entirety Federal Rule 56. In applying this new Rule 1.510 the Court is to look to Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), commonly referred to as the “Celotex trilogy”, as well as the overall body of case law interpreting Rule 56. In Celotex, the Supreme Court of the United States held Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |2 showing on an essential element of her case with respect to which she has the burden of proof. “[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552–53, 91 L. Ed. 2d 265 (1986). In Anderson, the Supreme Court of the United States made clear [A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. As Adickes, supra, and Cities Service, supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, supra, 391 U.S., at 288–289, 88 S.Ct., at 1592. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam), or is not significantly probative, Cities Service, supra, at 290, 88 S.Ct., at 1592, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). In Matsushita, the Supreme Court of the United States further explained that to survive a motion for summary judgment there must be a “genuine” issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986). Thus, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” See id. In the language of the Rule, the non-moving party must come forward with “specific facts showing that there is a genuine issue for trial.” See id. (quoting Fed. Rule Civ. Proc. 56(e)). Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |3 Simple allegation in an unsworn complaint is insufficient to overcome a denial in an answer. See e.g., Feinman v. City of Jacksonville, 356 So. 2d 50 (Fla. 1st DCA 1978); Daeda v. Blue Cross & Blue Shield of Florida, Inc., 698 So. 2d 617 (Fla. 2d DCA 1997). Therefore, a motion for summary judgment is the proper vehicle to overcome a denial in a complaint. See e.g., Stop & Shoppe Mart Inc. v. Mehdi, 854 So. 2d 784 (Fla. 5th DCA 2003). In addition, a denial in an answer is sufficient to dispute the validity of a claim, and when a plaintiff fails to prove its claim, the trial court cannot grant the relief requested in the complaint. See Pacific American Ins. Co. v. Red Door Motors, Inc., 497 So. 2d 721(Fla. 2nd DCA 1986). On the other hand, “affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege additional facts that avoid the legal effect of the confession.” Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975). The First District Court elaborated: [I]t is any matter which avoids the action, and which plaintiff is not bound to prove in the first instance in support of it, but which under the rules of evidence the defendant must affirmatively establish. A defense that concedes that the plaintiff once had a good cause of action, but insists that it no longer exists, involves a new matter. If what is alleged amounts to a denial, it is not a new matter; nor is it a new matter if the facts alleged might have been proved under a denial. Affirmative defenses are in the nature of confession and avoidance. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311 (Fla. 5th DCA 1985). They are pleas that assert that even if the Plaintiff’s case is taken as true, the Plaintiff can have no recovery because of the ultimate facts therein pled. Affirmative defenses do not simply deny facts of the opposing party's claim, but, rather, they raise some new matter which defeats an otherwise apparently valid Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |4 claim. Wiggins v. Portmay Corp., 430 So. 2d 531 (Fla. 1st DCA 1983). III. MEMORANDUM OF LAW A. Plaintiff complied with the conditions precedent prior to filing of the above styled lawsuit/Plaintiff’s Demand Letter was compliant with the applicable PIP Statute Florida Statute 627.736 (10)(a) states, “As 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.” The statute goes on to state in subsection (b): The notice required shall state that it is a “demand letter under §627.736 (10)” and shall state with specificity: 1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured. 1. The claim number or policy number upon which such claim was originally submitted to the insurer. 2. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. (emphasis added). The statute is clear and unambiguous. It is well settled in Florida that courts will not subject statutes to judicial construction where the statute’s plain language is unambiguous. State v. Jett, 626 So.2d 691 (Fla. 1993). Section 627.736 (10)(a) is clear. The statute mandates that the insurer must be put on notice. The statute mandates that an itemized statement which specifies each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. The statute does not mandate anything further, such as a grand total amount due. The Statute mandates that an itemized statement must be specific so that the insurer is Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |5 informed as to exact amount charged for each service, the date of the treatment, and the type of benefit. The statute further states, “A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.” See Florida State Statute §627.736 (10)(b)3. Upon review of section 627.736 (5)(d), it states that, “All statements and bills for medical services. . . shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form. . .” The CMS 1500 form itself simply shows the amount billed. Thus, the statute itself simply requires that the insurer be placed on notice of the amount billed. The demand letter submitted to the Defendant contained an itemized statement which contained the following: the date of service, the exact amount charged for each service, and the type of benefit, i.e., the CPT code detailing a description of the service. No other party than the Defendant is in a better position to know the amount that Defendant paid on the medical bills. The Plaintiff fulfilled its duty to put Defendant on notice as to what was billed to Defendant. For Defendant to claim that they in turn are unaware of what they paid, or that they are unable to calculate the difference between what the provider billed and what Defendant paid, is indefensible. In Defendant’s Answer and denial of Plaintiff’s allegations that Plaintiff has complied with the conditions precedent prior to filing of the above styled lawsuit, the Defendant does not cite any authority on all fours to support any position that the subject demand letter was invalid. Therefore, as Defendant was properly put on notice of the medical bills pursuant to the statute, Plaintiff’s Motion for Summary Judgment must be granted. B. Even if Plaintiff’s Demand Letter was not compliant, Defendant waived any claim of defect Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |6 Defendant responded to the subject demand letter and failed to allege in its response that Plaintiff’s demand letter was invalid and/or non-compliant with the PIP Statute. At no time did Defendant allege that it was in need of more specificity as to the amount of the medical bills. Instead, Defendant had the opportunity to review the claim, made the decision to pay some bills and not others or to make no payment, which is direct evidence that Defendant knowingly chose to defend against a potential lawsuit. Florida courts have repeatedly held that the Defendant’s conduct can act as a waiver to defects in notice requirements. In Brooks v. City of Miami, 161 So. 2d 675 (Fla. 3d DCA 1064), where the Defendant responded to a defective notice by stating that “the matter was being processed by reference to an insurance company”, the Third District Court of Appeal held, “We think that the plaintiff was justified in believing that she had done all that was necessary in notifying the City of her claim.” Id. at 677. See also Rabinowitz v. Town of Bay Harbor Islands, 178 So. 2d 9 (Fla. 1965). Thus, the Defendant was estopped from asserting the lack of notice as a defense. Id. Within the Brooks case, the Third District Court of Appeal discussed and relied upon other cases to reach its decision. First, the Court discerned the purpose of the notice requirement regarding a municipality claim. The purpose of requiring notice be given before a lawsuit is filed is to give the defending party the opportunity to decide whether the claim has merit, and therefore, whether to avoid litigation by paying the claim. Id., citing Sarasota v. Colbert, 97 So. 2d 872 (Fla. 2nd DCA 1957). Clearly in the case at bar, the demand letter put Defendant on notice with enough information for Defendant to decide to pay some of the medical bills while still disputing payment of other medical bills, or decide to deny the claim in its entirety, and thus, defend against a potential lawsuit. Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |7 Those other cases discussed within Brooks are Hammontree v. City of Tampa, 108 Fla. 343, 146 So. 556 (Fla. 1933)(when notice to a defending party substantially complies with statutory notice requirements so as to accomplish the purpose of the requirements, then the ensuing lawsuit is permitted to stand); Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885 (Fla. 1931) (when a defending party decides to litigate the matter on its merits, the defending party waives any objections to the form of the notice); Tillman v. City of Pompano Beach, 100 So. 2d 53 (Fla. 1957) (where a defending party has actual notice of a claim, conducted an investigation the claim and make a determination whether to defend or settle a claim, the defendant party is estopped from raising the defense of lack of written notice). All of these cases demonstrate that where the defending party has been put on notice with an opportunity to make a decision whether to settle a claim or litigate it, Florida courts support defective notices as the purpose of the notice requirement has been fulfilled. While in the case at bar the notice given to Defendant was not defective, assuming in arguendo that it was defective, Defendant has demonstrated in its reply that it was fully able to investigate the claim and make the decision to pay some or none of the outstanding medical bills, and defend not paying the remainder of the medical bills. Under Florida law, this bars Defendant from asserting the defense of defective notice. Further, in Magee v. City of Jacksonville, 87 So. 2d 589, 581-592 (Fla. 1956), the Court stated: . . . it appears to us that a just claim, if one exists, should not be denied by the application of strained constructions and the imposition of requirements for minute detail where an examination of the entire notice reveals tat it furnishes to the City officials adequate information within the framework of the statutory requirements in sufficient detail to enable them to make a thorough investigation of the asserted claim. Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |8 While the above cases are municipality cases, a similar line of cases exist concerning notice requirements under the medical malpractice statutes. See Patry v. Capps, 633 So. 2d 9 (Fla. 1994). Moreover, the 11th Judicial Circuit, Appellate Division, in and for Dade County addressed this issue in United Auto. Ins. Co. v. Perez, 18 Fla. L. Weekly Supp. 31a (11th Cir. November 8, 2010). In Perez, the medical provider sent a pre-suit demand to the insurer. However, thereafter the patient sued the insurance company for unpaid medical benefits. “The insurance company’s sole argument that it is not responsible for the medical expenses at issue is that the insured did not send a pre-suit demand himself.” In rejecting the insurer’s argument the Court stated “insurers who reject claims are required to notify claimants as to why such claims are being rejected, an insurer who fails to complaint of a defective demand letter until after suit is filed waives the defense.” See also Florida Statute §627.736(4)(b) and Stand Up MRI of Boca Raton, P.A. v. United Auto Ins. Co., 14 Fla. L. Weekly Supp 886a (Fla. Broward Cty. Ct. July 3, 2007). The Court further described the potential problems with the Perez demand letter as follows: The demand letter sent in the instant case was certainly not perfect. It was written on the letterhead of the medical provider and, while it does list the name of the patient, it does not state whether payment should be made to the provider or the patient. Whether the medical provider was demanding payment on its own behalf and simply forgot to attach an assignment, or whether it was demanding that the insured be paid was not clear from the letter. However, this was a situation that could have easily been remedied by the insurance company. All that it had to do was make an inquiry about who was requesting the payment or explain that the reason it was not making the payment was that the demand letter did not have an assignment attached or set forth who should be paid. Instead, the insurance company waited until after suit was filed to make known the reason it did not pay the bill, by including Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |9 the existence of the defective demand letter in its amended affirmative defenses. By failing to raise that easily remedied issue until after suit was filed, the insurance company waived it. Id. Here, the subject demand letter with attached assignment of benefits and itemized statement, clearly included more information than the demand letter addressed in Perez. Thus, it is clear in the case at bar that Defendant was given notice of the claim, had the opportunity to assess the validity of the claim, and made a conscious decision to not pay all of the medical bills. Therefore, Plaintiff’s Motion for Partial Summary Judgment must be Granted. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order Granting Plaintiff’s Motion for Summary Judgment on the issue of compliance with conditions precedent/Defendant’s Denial in Answer, in its entirety, and award Plaintiff reasonable attorney’s fees and costs for litigating this issue. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing Portal to be served upon the following persons at the designated email address(es) for service: Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road, Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 27th day of December, 2021. The Evolution Law Group, P.A. 2700 Glades Circle, Suite 145 Weston, FL 33327 Telephone (954) 840 6665 Facsimile (954) 840 6997 ServiceELG@theevolutionlawgroup.com Attorney for Plaintiff /s/ George Milev George Milev, Esquire Florida Bar No. 432120 Plaintiff’s Motion for Partial Summary Judgment on the Issue of Conditions Precedent |10