UNITED AUTOMOBILE INSURANCE COMPANY

v.

DYNAMIC MEDICAL SERVICES, INC., A/A/O DORALIS MESA

Before BAILEY, DRESNICK, and MARIN, J.J.

DRESNICK, J.

Appellant United Automobile Insurance Company (United) brings this appeal from a Summary Final Judgment entered in favor of the Appellant, Dynamic Medical Services, Inc. ("Dynamic"). The case presented before the trial court on cross motions for summary judgment. The Appellee, Dynamic, moved for summary judgment on declaratory judgment determining that there was no genuine issue of fact and that the care was reasonable, related and medically necessary. Appellant United moved for summary judgment due to the plaintiffs failure to 65* I [*2] follow Florida Stat. § 627.736(1 l)(a) requiring pre-suit notice. The trial judge rejected United's argument and granted Dynamic's Motion for Summary Judgment. AppellantUnited appeals the entry of summary judgment in favorof Dynamic and the denial ofUnited's dispositive summary judgment. The standard of review for an order granting summary judgment is de novo. Volusia County et. al v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 167 So. 2d 524, 525 (Fla. 3d DCA 2000). When applying the de novo standard ofreview to an order granting summary judgment, the reviewing court must determine: 1) whether a genuine issue of material fact exists; and, 2) whether the trial court applied the correct law. Volusia County, 760 So. 2d at 130; Flagship Resort Development Corp. v. Intern, Inc., 28 So. 3d 915, 920 (Fla. 3d DCA 2010). Prong two of the summary judgment standard of review - whether the trial court applied the correct law - is at issue here. Volusia County, 760 So. 2d at 130;FlagshipResort DevelopmentCorp., 28 So. 3d at 920. Both parties acknowledge that Appellee Dynamic Medical did not serve a pre-suit demand letter on Appellant United Auto before filing its complaint for declaratory relief on January 23, 2006. Both parties also acknowledge that Appellee Dynamic Medical did send United Auto a demand letter after filing suit. Dynamic argued to the trial court that Appellee's act of providing Appellant with a demand letter after filing its complaint for declaratory relief cured the pre-suitdemand letterdeficiency of§ 627.736(1 l)(a) ofthe Florida Statutes. However, the Third District Court of Appeal stated in Progressive ExpressInsurance Co. v. Menendez that § 627.736(1 l)(a) of the Florida Statutes requires a pre-suit demand letter be sent as a condition precedent to filing a lawsuit for overdue PIP benefit claims. 979 So. 2d 324, 332 (Fla. 3d DCA 2008), quashed on othergrounds. Progressive Express Insurance Co., Inc. v. Menendez, 35 So. 3d 873 (Fla. 2010). The Third District further determined that a demand letter sent after the lawsuit had been initiated cannot cure the pre-suit demand letter condition precedent deficiency. Menendez, 979 So. 2d at334. Therefore, we find thatthe trial court failed to applythe correct law when it heldthat Dynamic cured its failure to comply with the statutory condition precedent of § 627.736(1 l)(a) by providing United with a demand letter after the complaint for declaratory relief was filed. The Third District Court stated in Menendez that "[W]hen a plaintiff fails to complywiththe statutory condition precedent of §627.736(1 l)(a) the [*3] proper remedyis dismissal ofthe law suitand notabatement." 979 So. 2d at333. The failure to deliver the pre-suit notice requires dismissal ofthe case. The complexity of this matter is further exaggerated by Dynamic's pursuit of the matter as a declaratory judgment action. The complaint for declaratory relief sought to have the trial court determine whether the treatment provided for Ms. Mesa was reasonable, related, and necessary, and whether payment for treatment rendered would be appropriate; all of which are requirements under the contract of insurance. Claims submitted to obtain medical expenses incurred requires a factual determination with regard to whether the medical expenses for treatment were reasonable, related and necessary, and thus, entitled to payment. Cruz v. Union General Ins., 586 So. 2d 91, 91 (Fla. 3d DCA 1991); see § 627.736(7), Fla. Stat. (2006). These types of factual questions regarding entitlement to payment for services rendered should not be the subject matter ofdeclaratory actions. Cruz, 586 So. 2d at 91. An action for declaratoryrelief cannot be maintained when its goal is merely to seek payment formedical services rendered. Id. Instead, an action for breach of contract is the better vehicle to use when presenting the issue of payment to the court for resolution. Id. The denial ofa motion to dismiss is not generally a final order from which an appeal can be taken. However, after the denial of the motion to dismiss, the trial court granted Appellee's motion for summary judgment as it related to the declaratory action count. We find that the lower court erred when it denied Appellant United Auto's motion to dismiss the Appellee's complaint for declaratory relief; and that this orderbecame appealable once the final declaratory judgment was entered on April 20, 2009. See e.g., Lidsky Vaccaro & Monies, P.A. v. Morejon, 813 So. 2d 146, 150 (Fla. 3d DCA 2002) ("an appeal from a final order calls up for review all necessary interlocutory steps leading to that final order, whether they were separately appealable or not") Therefore, upon remand due to reversal ofthe summary judgment, the trial court should grantUnited's motion to dismiss the declaratory judgment count. Consequently, this case is Remanded to the trial court with directions that it vacate its February 10, 2009 order granting and denying summary judgment, vacate the April 20, 2009 order awarding final declaratoryjudgment in favor of Appellee Dynamic and dismiss the action based on the Appellee's failureto timely file a pre-suitdemand letter. [*4] BAILEY and MARIN, J.J concur. COPIES FURNISHED TO COUNSEL

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