12 Fla. L. Weekly Supp. 1085a
Insurance — Personal injury protection — Demand letter — Where demand letter sent by counsel for medical provider/assignee indicated it was sent on behalf of insured, letter was sent to claims representative not designated by insurer to receive demand letters on its behalf, and letter had attached copies of HCFA forms but failed to identify exact amount due, letter did not satisfy statutory condition precedent of demand letter
T & R REHABILITATION PROFESSIONAL CORP. A/A/O KATRINA MAYCOCK, Plaintiff, v. INSURANCE CORPORATION OF NEW YORK, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 03-11193 CC 25 (01). August 16, 2005. Jacqueline Schwartz, Judge. Counsel: Dominick Sanchez, for Plaintiff. Edward N. Winitz, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Coral Gables, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND ENTERING FINAL JUDGMENT IN FAVOR OF DEFENDANT, INSURANCE CORPORATION OF NEW YORK
THIS CAUSE came on to be heard on July 6, 2005, upon Defendant’s Motion to Dismiss or, in the alternative, Motion for Final Summary Judgment. Defendant informed this Court that it was withdrawing without prejudice one of the issues to be decided or whether the repeated misrepresentations under oath of claimant, Katrina Maycock, constituted a basis for dismissal or, in the alternative, summary judgment. Thus, this Court was concerned only with the question of law addressed in Defendant’s Motion for Final Summary Judgment as to Plaintiff’s failure to comply with F.S. 627.736(11) by failing to provide Defendant with a demand letter as required by the aforementioned Statute. Both parties appeared through counsel and the Court having heard argument of counsel, having reviewed the pleadings and discovery taken in this case, as well as being otherwise duly advised, the Court finds that there is no genuine issue of any material fact and that it can rule as a matter of law as to whether Plaintiff failed to comply with a condition precedent when it failed to provide Defendant with a demand letter as required by F.S. 627.736(11). Therefore, this Court
ORDERS AND ADJUDGES, as follows:
UNDISPUTED FACTS
1. Plaintiff, pursuant to an Assignment of Benefits executed by Katrina Maycock (herein after “Claimant”), filed its claim for PIP benefits against Defendant pursuant to a policy of insurance.
2. Prior to the filing of this lawsuit, Claimant was insured by Insurance Corporation of New York (hereinafter “Inscorp”) pursuant to a policy of insurance which included PIP coverage.
3. Following the accident, Claimant commenced a continuous course of treatment at T & R Rehabilitation Professional Corp. (hereinafter “Plaintiff”) for injuries resulting from the aforementioned accident.
4. That on August 15, 2003, Plaintiff, through its counsel, sent Inscorp a letter designated “Demand Letter Under 627.736(11), Florida Statutes. Said demand letter was addressed to the attention of Sandra Delgado, a claims representative. Plaintiff merely attached copies of Healthcare Finance Administration 1500 forms to the demand letter. Plaintiff’s demand letter also indicated that the letter was being sent on behalf of Plaintiff counsel’s client, Katrina Maycock.
5. The demand letter clearly does not provide the insurer, Inscorp, with the “exact amount due” or that the person intending to initiate litigation after fifteen (15) days after receipt of said demand letter is the Plaintiff herein. Further, said demand letter was addressed to Sandra Delgado and not the person designated with the Department of Insurance to receive such demand letters. It should be emphasized that the Claimant, Katrina Maycock, had previously assigned her benefits and all causes of action prior to the demand letter having been sent by Plaintiff’s counsel.
6. It is undisputed that the person to receive demand letter notices on behalf of Inscorp of New York was not Sandra Delgado.
7. Plaintiff filed no affidavit in opposition to Defendant’s Motion for Summary Judgment.
CONCLUSIONS OF LAW
A summary judgment may only be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The Court finds in the instant action, that there is no genuine issue as to any material fact and the Defendant, Inscorp of New York, is entitled to a summary judgment as a matter of law.
Section 627.736(11), Florida Statutes (2002) states in pertinent part as follows:
(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 attempt to initiate litigation . . .
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” and shall state with specificity:
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. . .Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this section.
Section 3 of the aforementioned Statute also states:
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 benefit claimed to be due.
The requirements of Section 627.736(11) are very specific and are designed, in part, to stop the overburdening of the Court with actions that could be resolved before suit.
Moreover, the requirements are such as 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 the Statute. To accept any less specificity than the specific language of the Statute would frustrate the Statute and render the specific requirements of the statute meaningless.
Due to Plaintiff’s counsel having sent a demand letter on behalf of the patient or claimant, Katrina Maycock, at the time she had no entitlement to file any claim due to her Assignment of Benefits, this Court finds as a matter of law that the wrong person mailed a demand letter to a person not designated by Inscorp to receive such demand notices. Thus, the statutory conditions precedent to filing this lawsuit were not met.
Not only was the demand letter furnished by the incorrect person to a person not designated by the insurer to accept such notices, Plaintiff also failed to identify the exact amount being claimed, the specific service provided, and the specific date that the service and amount is being claimed as overdue. Plaintiff only attached HCFAs or CMS-1500 forms to the demand letter. Merely attaching these forms does not provide the insurer or Inscorp with the “exact amount due.” Therefore, it is the determination of this Court that Plaintiff’s demand letter, even if it was mailed by the correct Plaintiff to the correct designated person of Inscorp, that Plaintiff’s demand letter fails to comply with the very specific requirements set forth in Section 627.736(11).
This Court finds persuasive the cases cited by the Defendant in support of its Motion for Final Summary Judgment including Stretton v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 369b (Orange County, Dec. 22, 2004), Feigenbaum v. Progressive American Insurance Co., 11 Fla. L. Weekly Supp. 737a (Sarasota County, May 11, 2004), Physician’s Referral and Medical Services v. Progressive Insurance Co., 11 Fla. L. Weekly Supp. 831b (Miami-Dade County, June 23, 2004), Universal Healthcare Center v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 932b (Broward County, July 14, 2004), Urgent Care Center v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 673b (Miami-Dade County, April 15, 2005), Mandarin Chiropractic Center v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 564b (Duval County, March 14, 2005), Chambers Medical Group v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 556a (Hillsborough County, March 18, 2005), and Chiro-Medical Rehabilitation of Orlando v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 162b (Broward County, October 15, 2004).
As a result of Plaintiff’s failure to comply with the specific requirements pursuant to Section 627.736(11) it is hereby
ORDERED AND ADJUDGED that the Motion for Final Summary Judgment filed by Defendant, INSURANCE CORPORATION OF NEW YORK is hereby GRANTED.
FINAL JUDGMENT FOR INSURANCE CORPORATION OF NEW YORK
Pursuant to the foregoing, Final Judgment is hereby entered in favor of Defendant, INSURANCE CORPORATION OF NEW YORK, and against Plaintiff T & R REHABILITATION PROFESSIONAL CORP. a/a/o KATRINA MAYCOCK. Plaintiff shall take nothing by this action, and Defendant, INSURANCE CORPORATION OF NEW YORK, shall go hence without day. It is further
ORDERED AND ADJUDGED that this Court reserves jurisdiction in order to tax fees and costs against Plaintiff and Plaintiff’s counsel, pursuant to its Motion for Fees (57.105, Florida Statutes) and its Proposal for Settlement.
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