11 Fla. L. Weekly Supp. 48b
Insurance — Personal injury protection — Provider/assignee which brought suit against insurer failed to submit written notice of intent to initiate litigation or demand letter to insurer, as required by statute — Insurer’s motion for summary judgment granted
ADVANCED ORTHOPEDIC REHABILITATION On behalf of JUANA PENA, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 02-19006-SC. Division “I”. June 30, 2003. Charlotte W. Anderson, Judge. Counsel: David Feinswog, for Plaintiff. Steven D. Manno, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court for a hearing on Defendant’s Motion for Summary Judgment on May 19, 2003, and the Court being fully advised in the premises, it is ORDERED AND ADJUDGED AS FOLLOWS:
That based upon the arguments of counsels and the authorities presented, Defendant’s Motion for Summary Judgment is hereby granted.
FACTS
That it is undisputed that the Defendant’s insured, Juana Pena, was involved in a motor vehicle accident on January 13, 2002. The Plaintiff rendered services to Juana Pena after this motor vehicle accident. The Plaintiff rendered medical services to Juana Pena on June 21, 2002, June 26, 2002, July 1, 2002 and July 2, 2002. The Plaintiff submitted four (4) health insurance claims forms to Defendant, State Farm for services rendered on those dates. The total billed for these services was $1,030.00. State Farm, remitted payment to the Plaintiff in the amount of $637.88 for services rendered on June 21, 2002, June 26, 2002, July 1, 2002 and July 2, 2002.
The Defendant argues that the payment of $637.88 rather than $825.88 (80% of $1,030.00) was the result of simple error or an improper calculation and was not the product of an intentional reduction and/or denial.
That Plaintiff, prior to filing this lawsuit, failed to submit written notice or a demand letter to the Defendant pursuant to §627.736(11), Fla. Stat. (2001). The Defendant argues that the Plaintiff must, as a condition precedent to bringing this action, comply with Florida Statute §627.736(11). That the Plaintiff argues that the payment of $637.88 rather than the amount owed of $825.88 was a result of State Farm’s reducing the medical bills at issue.
Moreover, on or about October 9, 2002, Defendant exhausted all of available PIP benefits in the amount of $10,000.00. The Plaintiff filed this lawsuit on August 15, 2002. Benefits exhausted on October 9, 2002. The Defendant was served with this lawsuit on August 20, 2002. The Defendant contends that there are no actual monies in dispute because State Farm has completed its obligation to its insured, and the Plaintiff, by paying for reasonable, necessary and related expenses under the PIP policy until benefits were exhausted.
It is hereby ORDERED and ADJUDGED that:
1. Defendant’s Motion for Summary Judgment is hereby granted. That based upon the evidence before this Court, pursuant to the Affidavit of Nancy Reading and Ben Gabbard, this Court finds that the statute is abundantly clear and notice was required pursuant to Fla. Stat. §627.736(11), as a condition precedent to this lawsuit. The Defendant did not send any explanation of benefits and the evidence before this Court revealed that the Defendant paid in full the first three claims. The Court notes that there is no evidence contained in the record which indicates the Defendant was denying this payment. Given that the Plaintiff did not provide the Defendant with written notice of an intent to initiate litigation, the Plaintiff has failed to comply and/or fulfill a condition precedent. Therefore, the Defendant is entitled to summary judgment.
The Court does not reach the merits regarding the issue of exhaustion of benefits as it is hereby rendered moot as summary judgment is granted based upon Florida Statute 627.736(11).
The Court hereby reserves jurisdiction regarding Defendant’s entitlement to attorney’s fees and costs.
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