11 Fla. L. Weekly Supp. 858a
Insurance — Personal injury protection — Demand letter — Medical provider was required to provide insurer written demand letter for additional unpaid bills prior to amending complaint to seek payment for those bills — Partial summary judgment granted in favor of insurer
HOFFNER FAMILY CHIROPRACTIC, INC., as assignee of RAMON MERCADO, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-003864. June 25, 2004. Ralph E. Eriksson, Judge. Counsel: David B. Blessing, The Coury Law Firm, P.A., Lake Mary, for Plaintiff. Lisa Bernardini, Law Offices of Capito & Polk, Longwood, for Defendant.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT AND WITHDRAWING PRIOR ORDER GRANTING FINAL SUMMARY JUDGMENT
[Original Opinion at 11 Fla. L. Weekly Supp. 754a]
THIS CAUSE initially came on to be heard on May 12, 2004 upon the Defendant’s Motion for Final Summary Judgment and then on June 25, 2004 on Plaintiff’s Motion for Clarification of the Order Granting Final Summary Judgment. The parties agree that Defendant’s Motion for Final Summary Judgment should be deemed a motion for partial summary judgment regarding the additional medical billing alleged in the amended complaints. The facts do not appear to be in dispute and the Court finds them to be as follows:
1. The insured was injured in an automobile accident in June, 2003 and (promptly) received treatment for his injuries from the Plaintiff.
2. When the insurance company (Defendant) did not timely pay the medical bills for dates of service of June 18-19, 2003, the Plaintiff filed a lawsuit during July, 2003 to compel payment of those bills.
3. In September, 2003 the insurance company confessed judgment and paid the billing at issue in the original Complaint for the alleged dates of service of June 18-19, 2003.
4. Thereafter, the Plaintiff filed a First Amended Complaint and a Second Amended Complaint, seeking payment in both amended complaints for additional bills for medical services provided to the insured. These additional bills are for dates of service after June 19, 2003 but before August 1, 2003 and also for dates of service on and after August 1, 2003.
5. As to the additional medical billing at issue in the amended complaints, which amendments took place after August 1, 2003, there never was a demand letter sent to the insurance company.
At issue in this case is whether new subsection (11)(a) of Florida Statute §627.736 that went into effect on August 1, 2003, required the Plaintiff to submit a written demand letter for the additional unpaid bills prior to amending its complaint after August 1, 2003, if those unpaid bills were for treatment that arose out of the original accident and injury and for which there was a proper lawsuit filed and pending before August 1, 2003 seeking payment of other unpaid medical bills from the same accident and injury.
a Florida Statute §627.736(11)(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. Such notice may not be sent until the claim is overdue.” The words “Such notice may not be sent until the claim is overdue,” are further modified/explained by subsection (c) of the same statute which states, “Each notice required by this subsection must be delivered . . . .”
Therefore, the absence of a demand letter under Florida Statute §627.736(11) for the additional medical billing at issue in the amended complaints mandates that it is
ORDERED AND ADJUDGED as follows:
1. That the May 27, 2004 Order Granting Final Summary Judgment is withdrawn.
2. That the Defendant’s Motion for Final Summary Judgment is deemed to be a Motion for Partial Summary Judgment and is granted as to all billing for dates of service after June 19, 2003 which are at issue in the amended complaints.
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