13 Fla. L. Weekly Supp. 1091a
Insurance — Personal injury protection — Demand letter — Where medical provider sent pre-suit demand letter and filed suit before providing insurer with x-ray report requested in explanation of benefits, demand letter was sent before bills became overdue and was premature — Where provider did not serve another demand letter after claim became overdue ten days after insurer received x-ray report, suit is premature — Where bills were not overdue when suit was filed, insurer was not in breach of contract at that time, and complaint is legal nullity
BODY X-RAY CORP, INC. A/A/O GARCIA, SIDONIA Y., Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-12274 SP 05. July 24, 2006. Teretha Lundy Thomas, Judge. Counsel: Sadie Naveo. Maury L. Udell.
ORDER GRANTING AND FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came upon to be heard on April 19, 2006 on Defendant’s Motion for Summary Judgment and the Court having reviewed the documentary evidence, having heard argument of counsel, having considered the applicable law; and otherwise being fully advised in the premises, rules as follows:
FINDINGS OF FACT
1. This is an action for Personal Injury Protection (PIP) arising out of an accident that occurred on March 17, 2005 with a date of service at issue of March 18, 2005.
2. Plaintiff’s complaint alleges that it provided medical or other related services to its insured and that Defendant failed to timely pay PIP benefits.
3. The following facts are undisputed and viewed in a light most favorable to the Plaintiff and are supported by the Affidavit of Progressive’s corporate representative, Michelle Buck, filed with the Court.
(A) On May 18, 2005 Defendant received the Plaintiff’s initial claim for benefits but it did not contain a copy of the x-ray reports.
(B) On May 25, 2005, Progressive advised the Plaintiff through an Explanation of Benefits (EOB) that it required additional documentation prior to making a reimbursement decision pursuant to Fla. Stat. § 627.736(6)(b) (2005).
(C) On June 20, 2005, a pre-suit demand was sent by Plaintiff by Plaintiff’s counsel.
(D) On June 30, 2005, Defendant timely responded to the pre-suit demand by advising Plaintiff that the x-ray reports were requested but never sent.
(E) On August 4, 2005 — Plaintiff filed suit.
(F) On August 9, 2005, Plaintiff, through its attorney, served a copy of the x-ray report on Defendant in response.
(G) Pursuant to Fla. Stat. § 627.736(4)(b) (2005), the benefits became overdue on August 19, 2005.
(H) Plaintiff did not serve a pre-suit demand after August 19, 2005.
4. Plaintiff filed nothing in opposition to Defendant’s Motion for Summary Judgment.
CONCLUSIONS OF LAW
I. Plaintiff’s claim is premature as no pre-suit demand was served after the claim became due.
A statutory cause of action cannot be commenced until the Plaintiff has complied with all conditions precedent. Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 961 (Fla. 1983). In order to file a claim for PIP benefits, a Plaintiff, as a condition precedent, must serve a pre-suit demand pursuant to Fla. Stat. § 627.736(11)(a) (2005), which states as follows:
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).
Fla. Stat. § 627.736(11)(a) (2005) (Emphasis Added).
If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Moreover, if the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 299 (Fla. 4th DCA 2000). Statutes should not be interpreted in a manner that would deem the legislative action useless. U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101, 1104 (Fla. 3d DCA 2000). The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1150 (Fla. 2000).
In Wellington Chiropractic Center of Palm Beach, Inc. v. Nationwide Mutual Insurance Company, 11 Fla. L. Weekly Supp. 929b (15th Judicial Circuit, August 2004), an insurance carrier requested further information about charges previously forwarded by the medical provider via an Explanation of Benefits. The provider forwarded a pre-suit demand letter seeking payment for the disputed charges, but did not address the previously requested information by the carrier. The Court held that because the provider did not provide a legally sufficient response to the carrier’s request for information before filing the suit, the claim itself was premature and the carrier was entitled to summary judgment.
A careful reading of Fla. Stat. § 627.736(11)(a) (2005) indicates that the legislature intended that the pre-suit demand be sent when the claim is overdue. It is undisputed that Plaintiff did not provide a copy of the x-ray report with the HCFA when it first forwarded its bill to Defendant. See Affidavit of Michelle Buck. Pursuant to Fl. Stat. § 627.736(6)(b) (2005):
If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.
Fla. Stat. § 627.736(6)(b) (2005) (Emphasis Added).
In the instant case, the claim became overdue on August 19, 2005, 10 days after Progressive received the x-ray report from Plaintiff’s attorney, Pastor Montes Naveo & Gonzalez, P.A. However, no pre-suit demand was sent after the claim became overdue, in complete contradiction of Fla. Stat. § 627.736(11)(a) (2005). Therefore, Plaintiff’s pre-suit demand of June 20, 2005 was premature and Plaintiff cannot perfect its claim for PIP benefits without a proper pre-suit demand letter served after the claim becomes overdue. In fact, Progressive responded to Plaintiff’s premature pre-suit demand dated June 20, 2005, advising Plaintiff that “the x-ray reports were requested but never sent.” See Affidavit of Michelle Buck filed with this Court.
II. Plaintiff’s complaint is a legal nullity
The alleged PIP benefits became overdue on August 19, 2005, ten (10) days after Plaintiff’s counsel served a copy of the x-ray report on Defendant. Plaintiff’s complaint was filed on August 4, 2005, fifteen (15) days before the benefits became overdue. It is undisputed that on August 4, 2005, facts did not exist which entitled Plaintiff to the relief requested: Defendant’s failure to pay within 30 days of receipt of a covered loss in violation of Fla. Stat. § 627.736(4)(b).
Plaintiff’s complaint is a legal nullity as facts entitling Plaintiff to the relief requested, did not exist at the time the complaint was filed. At the time the complaint was filed, Defendant was not in breach of the contract of insurance. The general rule in actions at law is that the right of a plaintiff to recover must be measured by the facts as they exist [sic] when the suit was instituted.” Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005) (citing Cobbey on Replevin § 257 (2d ed.1900); 1 C.J. 1149).
In the case of Pomella v. Progressive, 12 Fla. L. Weekly Supp. 678b (17th Jud. Circ. Broward County, Case # 02-103111, March 2005), the Court was asked to rule on a similar issue as in the case at bar. In Pomella, the medical provider failed to provide additional information that was requested in an Explanation of Benefits. The Court held that the bills never became overdue as the documents were never provided, and the insurer was relieved of its duty to pay benefits. The court noted that as the provider did not provide the requested information prior to the filing of its suit, the Plaintiff could not proceed with the lawsuit.
Wherefore, for the foregoing reasons, Defendant’s Motion for Summary Judgment is hereby GRANTED, and Defendant shall go hence forth without day. The Court reserves jurisdiction to entertain any timely served motions to tax attorney’s fees and costs.
