18 Fla. L. Weekly Supp. 210a
Online Reference: FLWSUPP 1802MCKE
Insurance — Personal injury protection — Demand letter — Billing ledgers which were attached to demand letters and which list CPT codes and amounts billed are sufficient to overcome any alleged confusion in body of letters and suffice to put insurer on notice of dates and amounts of services — Assignment submitted with demand letters is sufficient — Moreover, insurer that is not party to assignment or in privity with parties to assignment has no standing to challenge any defects in assignment — Medical provider’s claim that insurer waived defense of defective demand letters by failing to allege defects in responses to demand letters raises issue of fact precluding summary judgment based on defective demand letter issue
NORTH LAUDERDALE CHIROPRACTIC CENTER, INC., as assignee of MARLON McKENZIE, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 07-11002 CC 23 01. May 26, 2009. Myriam Lehr, Judge. Counsel: David S. Kuczenski, Paul K. Schrier, P.A., Miami, for Plaintiff. Pablo Arrue, Office of the General Counsel-Trial Division, United Automobile Insurance Company, Miami Gardens, for Defendant.
AMENDED ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Re: DEFECTIVE DEMAND LETTER
(withdrawing the order dated December 16, 2008)
THIS CAUSE having come before the Court on Defendant’s Motion to For Final Summary Judgment and the Court having listened to the argument of Counsel, reviewed the Pleadings, applicable case law and being otherwise advised, the Court finds as follows:
1. Plaintiff, NORTH LAUDERDALE CHIROPRACTIC CENTER, INC., filed this matter seeking payment of personal injury protection insurance benefits for services rendered upon its insured, MARLON McKENZIE, a 10 year-old boy, pursuant to the contract of insurance which is regulated under 627.736, Fla. Stat.
2. The Defendant admitted to receiving a total of three demand letters, dated June 5, 2006, September 25, 2006 and March 7, 2006, from the Plaintiff prior to the filing of the instant legal action and one dated June 6, 2007 subsequent to the filing. The Plaintiff concedes that the Demand dated June 6, 2007 is not being utilized for pre-suit demand notice purposes.
3. The issues alleged by the Defendant are limited to:
a. The demands dated September 26, 2006 and March 7, 2006 do not identify the type of benefit claimed to be due;
b. The demands dated September 26, 2006 and March 7, 2006 do not have the correct date of loss;
c. The demands dated September 26, 2006 and March 7, 2006 provide conflicting information;
d. That the demands have a document attached titled “assignment of benefits” without the signature of the insured demonstrating that the assignment was in fact executed by the insured;
e. That the assignment of benefits attached is invalid.
4. The requirements of the demand letter subsection of §627.736 require that the notice may not be sent until the claim is overdue, and shall state:
a. That the letter is a demand letter under section 627.736(11);
b. The name of the insured, the type of benefits being sought and the claim number or policy number.
5. Paragraph (b) 3 of the statute permits a standard of “to the extent applicable” applying to:
a. The name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim;
b. An itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.
6. The Plaintiff alleged in its complaint paragraph 13, “The Plaintiff has complied with the prerequisites of Section 627.736(11), Fla. Stat., by sending a substantially compliant pre-suit demand letter.”
7. The court finds nowhere in Section 627.736(11), Fla. Stat., is a requirement a date of loss to be specified on the pre-suit demand letter.
8. The adjuster admitted that the demand letters included the correct claim number.
9. None of the responses to the demand letters from United Automobile Ins. Co. specifically alleged any defects with the any of the demand letters.
10. In response to the question regarding any alleged defects with the assignment of benefits attached to the first demand letter, the adjuster responded, “[i]t was signed by Norma Reyes for Marlon McKenzie.” Further, the adjuster testified, “[w]e don’t know what is the relationship. We couldn’t find out what was the relationship properly from Norma Reyes to Marlon McKenzie and it she was the legal guardian or not.”
11. In the response to the first demand, United’s documents allege the reasons for non-payment: “Bills not compliant with Florida Statute 627.736 5e/ euo N/S”.
12. When asked about the issue in the notice alleging, “Bills not compliant with Florida Statute 627.736 5e” the adjuster stated, “probably disclosure and acknowledgment form.”
13. The adjuster also admitted that United Automobile couldn’t take an EUO of a 10-year old.
14. The only testimony addressing the alleged defect with the demand letter dated September 25, 2008 was “Eight pages and it has an assignment of benefits attached saying that Norma Reyes for Marion McKenzie.”
15. The Court finds that the demands dated September 26, 2006 and March 7, 2006 state that the provider is seeking “personal injury protection benefits” and attaches a billing ledger listing CPT codes and amounts billed. The ledger is sufficient to overcome any alleged confusion in the body of the demand letter and suffices to put defendant on notice of the dates of services and amounts for the services.
16. The court finds that the assignment of benefits attached to the pre-suit demands contains the necessary language for the insured to assign the benefits to the Plaintiff, NORTH LAUDERDALE CHIROPRACTIC CENTER, INC. Moreover, at the hearing, counsel for the defendant acquiesced on the record that the signature on page 1 of the assignment “appear to be the same” as the signature on page 2 of the assignment attached to the June 6, 2007 demand. Finally, the eleventh circuit recently held “Further complicating Allstate’s position is the fact that; without privity, it has no standing to challenge the contract between Ms. Rosier and Digital. ‘A person not a party to nor in privity with a contract has no right to enforce it.’ Gallagher v. Exchange Corp., 167 So.2d 234 (Fla. 3d DCA 1964). The two parties to this assignment contract were Ms. Rosier, the beneficiary and Digital, the medial provider. These are the only two parties that may contest the validity of the contract.” Digital Medical Diagnostic v. Allstate Ins. Company, Case: 07- 028 AP, lower case: 02-13430 SP 23 (Fla. Cir. Ct., 11th Jud. Cir (App.) Oct. 2, 2008) [15 Fla. L. Weekly Supp. 1147b]. In this matter, United Auto is not a party to the assignment nor in privity to the parties to the assignment, thus it has no standing to allege any defects with the assignment.
17. The Court finds that the document attached to the demand letters submitted prior to the filing of this lawsuit, contain the sufficient language to establish the assigning of the rights at issue.
18. The Court finds that since the Defendant failed to proffer prior to the filing of this matter that any of the demands were defective, that the Defendant waived this defense. The Plaintiff alleged waiver. The issue of waiver presents at least a genuine issue of fact which precludes summary judgment. Meli v. Dade County Schools, 490 So.2d 120 (Fla. 3d DCA 1986) rehearing denied June 27, 1986).
19. Nonetheless, the court finds that the pre-suit demand letters are properly completed pursuant to Section 627.736(11), Fla. Stat.
20. The Court finds that the pre-suit demand letters provided to the Defendant prior to the filing of this matter comply with the statutory requirements of Section 627.736(11), Fla. Stat.
THEREFORE, it is hereupon, ORDERED AND ADJUDGED that said Motion be, and the same is hereby DENIED.
