12 Fla. L. Weekly Supp. 505b
Insurance — Personal injury protection — Delay in payment of benefits — Tolling of period — Explanation of benefits — Where insurer did not dispute amount of charge for TNS unit but sent EOB requesting invoice 10 days after receipt of bill, EOB tolled 30-day time limit for making payment and insurer had 20 days after receipt of invoice to make payment — Demand letter — No merit to insurer’s argument that it cannot be held liable for TNS unit bill being overdue because demand letter needed to be sent after invoice was received by insurer and 20 days passed without payment where insurer stipulated during discovery that condition precedent of demand letter as to TNS unit was satisfied and never took any action to dismiss suit or amend answer to assert affirmative defense or notified medical provider that insurer required another suit to be filed to litigate TNS unit bill — Partial summary judgment granted as to bill
B&T MEDICAL CENTER, LLC, assignee of Zoraida Viruet, #2, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-5387. March 8, 2005. J.R. Sloop, Judge. Counsel: Peter A Shapiro, Law Offices of Peter A Shapiro, Orlando. Carmen Muniz-Sierra, Orlando.
FINAL JUDGMENT ON PLAINTIFF’S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT
Following the hearing of February 8, 2005, IT IS ORDERED:
1. Plaintiff’s Second Motion for Partial Summary Judgment dealing with the bill of September 9, 2003, CPT code E0730, $345.00 is GRANTED.
2. The undisputed facts reveal that Zoraida Viruet was injured in an auto accident that took place on July 8, 2003.
3. Ms. Viruet had PIP with a $500.00 deductible from Defendant in effect on July 8, 2003.
4. Defendant has provided PIP benefits to Ms. Viruet.
5. One of the bills at issue in this law suit was for a TNS unit supplied by Plaintiff to Ms. Viruet on September 9, 2003, CPT code E0730, $345.00.
6. The record evidence shows that the TNS unit was a medically necessary supply provided to Ms. Viruet by the Plaintiff for the injuries she sustained in the automobile accident of July 8, 2003. The testimony of both Dr. Richard Bame, the treating chiropractor at the Plaintiff’s facility, and the claims adjuster Doug Lacey from Defendant, both confirm such.
7. Further, the testimony of Dr. Richard Bame and the adjuster Doug Lacey confirm that the $345.00 was a reasonable amount to be charged for the TNS unit.
8. There is no record evidence to dispute the medical necessity, relatedness or reasonableness of the TNS unit.
9. The only issue that surrounds this TNS unit was Defendant’s request for an invoice from Plaintiff showing how much Plaintiff paid for the TNS unit.
10. Defendant received the TNS unit bill (health insurance claim form) on September 23, 2003. On October 3, 2003, Defendant sent out an explanation of benefit form (“EOB”) to Plaintiff that did not dispute the amount of the charge ($345.00), rather it requested that Plaintiff submit an invoice to Defendant.
11. This Court (Judge Marblestone) previously ruled at the September 14, 2004 hearing on Plaintiff’s Motion for Partial Summary Judgment that the request for invoice tolled the 30 day time limit under Section 627.736, Fla. Stat.
12. Following that ruling, on October 11, 2004, Plaintiff forwarded Defendant the invoice for the subject TNS unit. Once Defendant received it, Defendant had 20 days to make payment on the TNS unit bill (10 days had expired from receipt of the bill on September 23, 2003 until October 3, 2003 when the EOB went out) per Section 627.736.
13. Defendant chose to do nothing following receipt of the invoice. Defendant did not pay the bill; Defendant did not dispute the amount billed of $345.00 (for example, by processing the bill through its Mitchell Medial bill review system to evaluate the reasonableness of the charge); nor did Defendant dispute the medical necessity or relatedness of the bill. This is true up to the present time.
14. Had Defendant paid the bill at 80% under the PIP benefits available within 20 days from receiving the invoice, Defendant would have relieved itself of any liability for the TNS unit bill as it would have been timely paid.
15. However, since Defendant did not do so, the bill became overdue (i.e. not paid within 30 days of receipt of the bill accounting for the tolling of the 30 day time period under Section 627.736(6)(b), Fla. Stat.). There is no dispute as to this fact.
16. Defendant now contends that notwithstanding such, it is cannot be held liable for the bill being over due because a PIP demand letter needed to be done following the invoice being received and 20 days passing by, and that Plaintiff has no valid case of action because at the time of filing of this suit, the bill was not over due, rather it was not until during the law suit that such took place.
17. The Court does not believe Defendant’s arguments have merit for the following reasons.
18. During the discovery phase of this law suit, Plaintiff and Defendant engaged in discovery as to whether the condition precedent of a PIP demand letter under Section 627.736(11), Fla. Stat. as to the TNS unit bill was satisfied. After Plaintiff deposed adjuster Kristin Maeillo, Defendant stipulated that Plaintiff had properly complied with the condition precedent of a PIP demand letter. Defendant was fully apprised of the status of the TNS unit bill at the time of the stipulation and cannot now contend that another PIP demand letter should have been done during the progress of this suit.
19. Further, given the dynamics of this suit and the nature of the PIP statute, Defendant’s argument that the Plaintiff has no cause of action for the TNS unit bill since the bill was not over due at the time suit was filed does not have merit in this law suit.
20. It would not have made sense for the Plaintiff to file another, identical law suit over the TNS unit bill after Defendant received the invoice for the TNS unit and 20 days went by without Defendant making any payment. This is true given the progress of this suit and Defendant’s continued participation in it as to the TNS unit bill, the fact that Defendant was on notice that it had 20 days to make payment (given this Court’s prior ruling that the PIP statute 30 day time limit had been tolled), and the fact that Defendant had already stipulated that the conditions precedent to bringing this suit as to the TNS unit bill had been met. Further, Defendant has not raised such by way of affirmative defense or motion.
21. Essentially, Defendant waived any need (if there was such a need) for Plaintiff to file another suit by continuing to actively participate in this suit pertaining to the TNS unit bill following receipt of the invoice and 20 days going by with Defendant not making any payment, stipulating that the PIP demand letter was in compliance with 627.736(11), Fla. Stat., and never taking any action to dismiss this suit/amend its answer to assert an appropriate affirmative defense, or notify Plaintiff that Defendant required another suit to be filed in order to litigate the TNS unit bill. The parties simply conformed the pleadings to the evidence by their conduct in this suit and continued to pursue the litigation on this case regarding the TNS unit bill. See Florida Power & Light Company v. System Council U-4, 307 So.2d 189, 191 (Fla. 4th DCA 1975)
22. Hassam v. Dade County, 178 So. 2d 747 (Fla. 3d DCA 1965), stated that if plaintiff has no valid cause of action on the facts weighing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending. The instant law suit is one where the word ordinarily used by the Hassam court applies as the facts of this case do not fall under what can be described as ordinary. Given the conduct of the Defendant in this suit, the stipulation made regarding the conditions precedent to this suit, and the nature of the PIP statute and its tolling provision, the failure of the Defendant to raise this issue as an affirmative defense or by motion, this suit would not fall under the principle discussed in Hassam.
23. Therefore, this Court finds that Plaintiff is entitled to partial summary judgment as to the TNS unit bill for date of service September 9, 2003. The Court enters judgment in favor of Plaintiff, 1310 N. Main Street — Suite 102, Kissimmee, Florida 34744-4244, and against Defendant Progressive Express Insurance Company, 1030 West Canton Avenue, Suite 100, Winter Park, FL 32789 in the amount of $276.00 plus statutory interest in the amount of $24.15 plus $4.42 for the postage for the PIP demand letter for a total judgment of $304.57 to bear 7% interest per annum for which let execution issue.
24. The Court reserves jurisdiction to assess reasonable attorneys’ fees and costs against Defendant as well as jurisdiction as to the remainder of this case dealing with other billing from Plaintiff to Defendant.
* * *
