Dora Ubeda

Dora Ubeda‏;

The Miami-Dade appellate court reversed Judge King on the issue of a prematurely filed presuit demand. In the case there was no question but that the initial presuit demand was prematurely served before the charges were overdue. The plaintiff’s rationale was that they did not file suit until the charges were fully overdue so no harm, no foul.

The plaintiff also tried to “cure” by serving another presuit demand while suit the pending. That was also found by the court to be invalid. Rather, the court followed the plain and unambiguous language of the statute and held that if the charges are not yet overdue, then you cannot serve a presuit demand.

One would have thought that Progressive v. Menendez would have carried the day, hands down. In that case no presuit demand was served, and the court held dismissal was required. Here effectively no presuit demand was served because it was served prematurely. While the court did see a distinction, nevertheless they held it was not a distinction that made a difference.

Also note the discussion about the “horn of dilemma” with a premature presuit demand: “to pay or not to pay, that is the question!” This decision should remove some of that question or doubt about what to do under this scenario.

The only downside, I suppose, is that court’s ruling that a dismissal or abatement is required. Menendez requires dismissal, period!

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