12 Fla. L. Weekly Supp. 989a
Insurance — Personal injury protection — Demand letter — MRI — Amount in excess of statutory fee schedule — Demand letter for MRI which sought amount in excess of maximum compensable amount set by statute failed to satisfy statutory requirement for demand letter as matter of law — Summary judgment granted in favor of insurer
FLORIDA MRI, INC. (a/a/o Edouard Joseph), Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-9692-COCE-49. July 14, 2005. Kathleen D. Ireland, Judge. Counsel: Steven Lander, for Plaintiff. Frank S. Goldstein, Hengber, Goldstein, & Ray, P.A., Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court for hearing on April 27, 2005, on Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the file, the Defendant’s motion, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED:
1. The Plaintiff, Florida MRI, Inc., (a/a/o Edouard Joseph), brought this action seeking recovery of personal injury protection (PIP) benefits, under §627.736, Florida Statutes, for Magnetic Resonance Image of the Lumbar Spine (CPT Code 72148) performed on March 1, 2004.
2. As a condition precedent to filing the above-styled action for PIP benefits, Plaintiff was obliged to comply with §627.736(11), Florida Statutes, which states, in pertinent part:
(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. . . .
3. To the extent applicable, the name of any 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 benefit claimed to be due.
3. In an attempt to comply with §627.736(11), Florida Statute, on or about May 18, 2004, the Plaintiff submitted a demand letter to Defendant, ALLSTATE INDEMNITY COMPANY, requested payment of $1,625.00 for the March 1, 2004 Lumbar MRI of Edouard Joseph, along with postage, penalty and interest on the principal amount sought.
4. Well before the date of service in question, the Florida Legislature enacted the provisions of §627.736(5)(b)(5), Florida Statutes, which state in pertinent part:
Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year’s changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region. . . . (Emphasis Added)
5. The requirements of §627.736(11), Florida Statutes, are very specific and designed to stop the overburdening of the Court with actions that can be resolved before suit.
6. The purpose of such specific requirements of §627.736(11), Florida Statutes, is to put the insurer on notice of a claim and have the opportunity to know from the Demand Letter the exact amount of the overdue claim, and to know that if the insurer pays said amount, the claim will be resolved without litigation.
7. If ALLSTATE INDEMNITY COMPANY cannot, in good faith, comply with the amount stated on the Demand Letter, the purpose of putting the insurer on notice of the exact amount to pay in order to avoid litigation would be defeated.
8. In this instant case, Plaintiff failed to satisfy a condition precedent to the filing of this action by submitting a Demand Letter to ALLSTATE INDEMNITY COMPANY, seeking an amount in excess of the maximum compensable amount as set forth by the Legislature pursuant to §627.736(5)(b)(5), Florida Statutes, thus failing to specify the proper compensable amount which ALLSTATE INDEMNITY COMPANY could pay to avoid litigation.
9. Plaintiff improvidently relies upon the case of United Automobile Insurance Company vs. A-1 Mobile MRI, Inc. (Jones), Case No: 04-13238 (05), Circuit Court of the 17th Judicial Circuit, Broward County, Florida, wherein the Court concluded that even though the MRI was billed in excess of said fee scheduled amount, it did not provide for an absolute defense to payment.
10. While this Court agrees with the foregoing decision, the instant case presents a different situation and is clearly distinguishable as the instant case proposes an entirely different matter of law.
11. The Court in United Automobile Insurance Company vs. A-1 Mobile MRI, Inc. (Jones), concluded that when a provider bills over the fee schedule amount, that bill is not per se unlawful.
12. In the instant case, ALLSTATE INDEMNITY COMPANY did not argue that the bill was unlawful, but rather, that the demand letter did not satisfy the condition precedent to filing this lawsuit.
13. At the time Plaintiff submitted said demand letter, there were several variations under which the MRI could have been billed, taking into account the CPI adjustment and whether it be participating, non-participating or limiting.
14. By the time a demand letter is formulated, the creator of the demand letter should take into account and calculate the amount allowable for said MRI, using the CPI adjustment and whether the provider is participating, non-participating or limiting.
15. Whoever created the demand letter in the instant case was aware of the statutory fee schedule and specific calculations that should have been used to calculate the exact amount they were entitled to pursuant to §627.736, Florida Statutes, and did not attempt to conform to the statute by calculating an exact amount owed for the MRI.
16. The Plaintiff had the opportunity to calculate the exact amount allegedly due and owed by ALLSTATE INDEMNITY COMPANY, and prepare a Demand Letter with that exact amount stated, which would have put ALLSTATE INDEMNITY COMPANY on notice of the amount they could pay to avoid litigation.
17. Without the proper amount due and owed stated on the Demand Letter, ALLSTATE INDEMNITY COMPANY could not have known which calculations Plaintiff was depending on in determining the exact amount ALLSTATE INDEMNITY COMPANY could pay to avoid litigation, which is the purpose of the Demand Letter requirements pursuant to §627.736(11), Florida Statutes.
18. As such, Plaintiff’s Demand letter was insufficient as it did not put the insurer on notice or give the insurer the opportunity to pay an exact amount to avoid litigation.
19. Therefore, it is the determination of this Court that Plaintiff’s Demand Letter fails to comply with the requirements of §627.736(11), Florida Statutes, as a matter of law.
20. Accordingly, Defendant’s Motion for Final Summary Judgment be and the same is GRANTED and the Court reserves jurisdiction for the determination of Attorney Fees and Costs.
21. Accordingly, Defendant’s Motion for Final Summary Judgment is GRANTED. Defendant, ALLSTATE INDEMNITY COMPANY, shall go hence without day and Plaintiff, FLORIDA MRI, INC. (a/a/o Edouard Joseph) shall take nothing by this action. The Court reserves jurisdiction to award attorney fees and costs.
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