11 Fla. L. Weekly Supp. 361a
Insurance — Personal injury protection — Provider’s action against insurer for overdue benefits — As condition precedent to filing action for overdue claim, claimant must serve demand letter upon insurer — Explanation of benefits stating that bills were under review not tantamount to a statement that claim had been denied or reduced which would excuse claimant from presuit notice requirement — Plaintiff in instant case was obligated to file seven-day notice prior to filing suit — Defendant’s motion for summary judgment granted
MOBILE DIAGNOSTIC IMAGING, LLC, a/a/o Marianne Mertus, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-007350 COCE 56. January 20, 2004. Linda R. Pratt, Judge. Counsel: Steve Lander, for Plaintiff. Brenda Fam, Hengber, Goldstein & Ray, P.A., for Defendant.
FINAL JUDGMENT FOR ALLSTATE INSURANCE COMPANY
[As Corrected by Order Dated March 15, 2004]
[Editor’s note: Court retreats from decision published at 10 Fla. L. Weekly Supp. 1044d]
THIS CAUSE having come before the Court upon Defendant, ALLSTATE INDEMNITY COMPANY’S Motion for Final Summary Judgment against Plaintiff, MOBILE DIAGNOSTIC IMAGING, LLC (a/a/o Marianne Mertus), (Hereinafter referred to as Mobile Diagnostic) and the Court having heard argument of counsel, and being otherwise duly advised in the premises, it is,
ORDERED AND ADJUDGED that there are no genuine issues of material fact in dispute and Defendant’s Motion for Final Summary Judgment may be entered as a matter of law.
This Order serves to reverse my prior ruling on Plaintiff’s Motion to Dismiss published 10 Fla. L. Weekly Supp. 1044d. The Court retreats from that decision and further recognizes that the Defendant’s Motion to Dismiss was limited to the four corners of the Complaint and the attachments annexed and incorporated. This matter was properly brought before this Court on Defendant’s Motion for Final Summary Judgment and the Court finds that “Plaintiff is obligated to file seven-day demand prior to filing suit”.1
The undisputed facts show that the Plaintiff, MOBILE DIAGNOSTIC IMAGING, LLC (a/a/o Marianne Mertus), brought a PIP action against the Defendant, ALLSTATE INDEMNITY COMPANY, for overdue no fault benefits, for treatment allegedly rendered to the assignor, Marianne Mertus, on February 18, 2003. “ALLSTATE” forwarded an unambiguous Explanation of Benefits to Mobile Diagnostic setting forth that the “CHARGES ARE BEING INVESTIGATED . . . . PLEASE CONTACT ANGELA CRAWLEY”. Upon receipt of the Explanation of Benefits, and after expiration of thirty days from the date of submission of the claim to Allstate, Mobile Diagnostic filed suit and made claim for immediate payment of overdue no fault benefits.
As a condition precedent to filing any action for an overdue claim, Fla. Stat. 627.736 (2002) requires that a claimant must serve a demand letter upon an insurer. Section (11) DEMAND LETTER of Fla. Stat. 627.736 (2002) mandates as follows:
(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation . . .such notice is not required for an overdue claim that the insurer has denied or reduced. . .
(d) If, within 7 business days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action for nonpayment or late payment may be brought against the insurer.
See also Family Chiropractic Center a/s/a Sasso v. First Floridian Auto and Home Ins., 10 Fla. L. Weekly Supp. 358a, County Court for the 13th Judicial Circuit in and for Hillsborough County, Florida. [Medical provider which did not submit written notice of intent to initiate litigation to insurer prior to filing lawsuit failed to satisfy condition precedent to filing suit — Summary judgment granted in favor of insurer].
The Plaintiff does not qualify for the existing exceptions to the notice requirement, as “ALLSTATE” has not “denied” or “reduced” the overdue claim. Notice of intent to initiate litigation against an insurer is not required under Fla. Stat. 627.736(11) (2002)2 when an insurer previously “denied” or “reduced” the claim.
While the Court is required to read statutes in their entirety, it is not free to add provisions to parts of statutes under the guise of such reading. See Fortune Ins. Co. v. Everglades Diagnostics Inc., 721 So. 2d 384, 385 (Fla. 4th DCA 1998); See also, Holly v. Auld, 450 Sp.2d 217, 219 (Fla. 1984). “Courts of this state are “without the power” to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power’.
An insurers’ expression that they are “investigating a claim” is not a statement that the claim has been “denied” or that the charges were “reduced”. Unambiguous terms are understood in their plain and ordinary sense. An ongoing investigation does not amount to a “denial” or a repudiation of the claim.
This Plaintiff is not excused from the pre-suit notice requirement nor will this Court create an exception which does not exist. Adherence to the pre-suit notice requirement promotes the legislative goal of reducing unnecessary litigation and curtails ever-increasing legal fees. For more than (30) years a legislative objective in the PIP statute has included the lessening of the congestion of the court system and a reduction of automobile insurance premiums. Lasky v. State Farm Mut. Ins. Co., 296 So. 2d 9 (Fla. 1978). This ongoing objective is emphasized in the 2002 and 2003 Legislative amendments as the Legislature emphasized that they are seeking to restore a competitive automobile insurance market in which consumers are able to obtain affordable coverage and to curb escalating legal and other related costs. SB-32A Section 1.(g).3
Accordingly, Defendant’s Motion for Final Summary Judgment is GRANTED. Further it is ADJUDGED that Final Judgment is ENTERED in favor of ALLSTATE INDEMNITY COMPANY and the Plaintiff, MOBILE DIAGNOSTIC IMAGING LLC, a/a/o Marianne Mertus, takes nothing by his action. Defendant, ALLSTATE INDEMNITY COMPANY, shall go hence without day. The Plaintiff, MOBILE DIAGNOSTIC IMAGING LLC, a/a/o Marianne Mertus, takes nothing by this action.
Accordingly, the Court reserves jurisdiction to entertain Defendant’s Motion for attorney fees or costs.
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110 Fla. L. Weekly Supp. 1044d inaccurately reports that Brenda Fam appeared on behalf of the Defendant at the hearing for the Motion to Dismiss. Defendant’s Motion to Dismiss was argued by Gil Barreto Defendant’s Motion for Final Summary Judgment was argued by Brenda Fam.
2Note: Fla. Stat. 627.736 (amended 2003) provides no exceptions to the pre-suit notice requirement and a claimant as a condition precedent to commencing legal action, must provide an insurer with notice of an intent to commence litigation a minimum of fifteen (15) days prior to filing a no-fault claim.
3See Senate Bill 1092 (June 19, 2001); Senate Bill 324 (8/01/03).
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