11 Fla. L. Weekly Supp. 1095b
Insurance — Personal injury protection — Demand letter — Sufficiency — Merely attaching HCFA forms to document identified as demand letter fails to comply with statutory requirement to provide insurer with exact amount due as it does not account for amounts applied to deductible, amounts reduced to reasonable charges or partial payments made — Final summary judgment granted in favor of insurer
UNIVERSAL HEALTH CARE CENTER, INC., (a/a/o Leslie Cross), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-23555 COCE 49. August 11, 2004. Kathleen Ireland, Judge. Counsel: Gary D. Gelch, Gelch & Taylor, P.A., for Plaintiff. Eleanor “Ellie” Weinberger, Hengber, Goldstein & Ray, P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on June 22, 2004 on Defendant’s Motion for Final Summary Judgment and the Court having considered the record, having heard argument of counsel and the court being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. There are no genuine issues of material facts in dispute in that the facts presented by Defendant in its Motion for Final Summary Judgment and its Affidavit in Support of Defendant’s Motion for Summary Judgment are uncontested. Plaintiff filed no contravening affidavit.
2. The demand letter submitted by the Plaintiff has failed to state the exact amount claimed. Section 627.763(11) F.S. (2003) is very specific regarding the requirements of the Demand Letter and what is expected from both sides in order to comply with the statute.
3. Statute §627.736 states, in pertinent part:
(11) DEMAND LETTER. —
(a) 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, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
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3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of henefit claimed to be due. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. . . .
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(d) If, within 15 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 may be brought against the insurer. . . .
4. The requirements of §627.763(11) F.S. (2003) are very specific and are designed, in part, to stop the overburdening of the Court with actions that could be resolved before suit.
5. The requirements of §627.763(11) F.S. (2003) are very specific and are designed, in part, to give the insurer an opportunity to know from the Demand Letter the exact amount of the overdue claim and to avoid litigation by paying the exact amount of the “overdue claim specified in the notice”, as specified in §627.763(11)(d) F.S. (2003).
6. To accept any less specificity than the explicit language of the statute would frustrate the statute and render the specific requirements of §627.763(11) F.S. (2003) meaningless.
7. Plaintiff simply attached HCFA forms to a document identified to be a Demand Letter pursuant to §627.763(11)(d) F.S. (2003) without identifying the exact amount claimed, the specific service provided, and the specific date that this service and amount is being claimed as overdue.
8. Merely attaching HCFAs to the Demand Letter clearly does not provide the insurer with the “exact amount due” as this does not account for the amounts applied to the deductible, amounts reduced to reasonable charges or any other partial payments made.
9. Therefore, it is the determination of this Court that Plaintiff’s Demand Letter fails to comply with the requirements of §627.763(11) F.S. (2003) as a matter of law.
10. Accordingly, Defendant’s Motion for Final Summary Judgment be and the same is GRANTED. Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day and Plaintiff, UNIVERSAL HEALTH CARE CENTER, INC. (a/a/o Leslie Cross) shall take nothing by this action. The Court reserves jurisdiction to consider attorney fees and costs.
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