13 Fla. L. Weekly Supp. 1040a

Insurance — Personal injury protection — Civil procedure — Whether billing ledger attached to 15-day demand letter pursuant to Florida Statutes, section 627.736(11) was legible created issues of fact that precluded summary judgment on that basis — Summary judgment must be affirmed under Tipsy Coachman rule since the billing ledger listed all treatment received by insured, not just treatment for which payment was sought as required by PIP statute — Summary judgment affirmed

JAMES SMITH, LMT, on behalf of KEVIN WHITE, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0069-AP88B. UCN522005AP000069XXXXCV. June 2, 2006. Appeal from Final Summary Judgment, Pinellas County Court, Judge Gerald O’Brien. Counsel: Christopher DeBari, Clearwater, for Appellant. Karen A. Barnett, Tampa, for Appellee.

[County court order published at 12 Fla. L. Weekly 1072a.]

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by James Smith, LMT, on behalf of Kevin White (Smith), from the Order Granting Final Summary Judgment, entered August 18, 2005, in favor of State Farm Mutual Automobile Insurance Company (State Farm). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that Kevin White sustained injuries as a result of an automobile accident on September 11, 2003, and received treatment for his injuries from Smith. White, who was covered under an insurance policy issued by State Farm, assigned his rights and benefits to Smith. Smith sought payment of personal injury protection (PIP) benefits from State Farm for services rendered to White. State Farm notified Smith, on July 14, 2004, that PIP benefits accruing after April 2, 2004, would not be reimbursed due to the findings of the independent medical examination.

Pursuant to Florida Statutes, § 627.736(11),¹ Smith submitted a 15-day demand letter to State Farm, via certified mail on August 6, 2004, to recover overdue PIP payments. Attached to the demand letter was an itemized billing ledger, from September 2003 through July 2004, which purported to set forth an itemized statement of treatment rendered, date of service, and the amount due. State Farm failed to pay the requested PIP benefits resulting in Smith filing the underlying complaint on August 31, 2004. State Farm answered the complaint and then filed its Motion for Summary Judgment arguing that the 15-day demand letter was defective because it failed to identify dates of service and the amount owed for each service. After a hearing on the matter, the trial court granted summary judgment in favor of State Farm finding that the 15-day demand letter failed to meet the requirements of § 627.736(11) because the attached ledger was illegible.

Before this Court, Smith argues that State Farm did not properly plead that the ledger was illegible, nor was Smith properly noticed that State Farm was seeking summary judgment based on the legibility of the ledger. Smith also argues that issues of material fact exist as to the legibility of the ledger which precluded the entry of summary judgment. Initially, the Court reiterates the well-settled law that summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail; even the slightest doubt must be resolved against the moving party. See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). The Court generally will not consider claims of error which are raised for the first time on appeal. See Hernandez v. Kissimmee Police Department, 901 So.2d 420, 421 (Fla. 5th DCA 2005); see also Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995) (stating that without objection the argument has been waived).

In reviewing these issues, the Court finds that whether the billing ledger was legible, and whether Smith was properly put on notice of the document’s legibility, created issues of fact that precluded the entry of summary judgment on that basis. The record shows that it wasn’t until the hearing that the legibility of the billing ledger became an issue. Rather, as set forth in its Motion for Summary Judgment, State Farm sought summary judgment because Smith “merely attached a ledger showing all the services rendered to Kevin White,” not just those services for which Smith sought payment. (emphasis original). State Farm argued that Smith failed to comply with a condition precedent to filing suit because Smith failed to submit “an itemized statement specifying each exact amount, the date of treatment, service or accommodation, and the type of benefit claimed to be due.”

The first mention of legibility came when the trial court stated during the hearing, “This exhibit — I don’t know how you describe it, it’s almost illegible,” to which State Farm responded, “Exactly. That’s one of our other problems.” The trial court then goes on to say, “How would you read it? You would have to have a magnifying glass”, to which State Farm again agrees. The dialogue between the trial court and State Farm shows that Smith was not aware that legibility of the billing ledger was an issue before the hearing and, more importantly, the legibility of the ledger was subjective and could not, as a matter of law, be found to be illegible for summary judgment purposes.

Nonetheless, under the “tipsy coachman rule,” the trial court’s ruling must be affirmed. See Malu v. Security National Insurance Company, 898 So.2d 69, 73 (Fla. 2005) (explaining the doctrine that allows an appellate court to affirm a trial court that reaches the right result for the wrong reason); City of Clearwater v. School Board of Pinellas County, 905 So.2d 1051, 1057 (Fla. 2d DCA 2005) (same). Although not a basis for the trial court’s ruling, the Court finds that the billing ledger was insufficient as it is undisputed that the ledger listed all treatment, not just the treatment for which payment was sought. (emphasis added). See e.g. Universal Health Care Center, Inc. v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 932 (Fla. 17th Cir. Ct. July 14, 2004)(granting summary judgment in favor of insured where form attached to the demand letter failed to specify the service provided, date of service, and the amount claimed as overdue); Ponte Vedra Chiropractic Medicine & P.T. v. Progressive American Insurance Company, 11 Fla. L. Weekly 829 (Fla. St. Johns Cty. Ct. July 8, 2004) (same). Under these facts, the Court concludes that Final Summary Judgment in favor of State Farm must be affirmed.

Therefore, it is,

ORDERED AND ADJUDGED that the Order Granting Final Summary Judgment is affirmed. It is further

ORDERED AND ADJUDGED that Appellee’s Motion for Appellate Attorney’s Fees and Costs is denied. (DAVID A. DEMERS, ANTHONY RONDOLINO, and PETER RAMSBERGER, JJ.)

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¹Florida Statutes, § 627.736(11)(a), mandates an insured to provide the insurer with written notice of an intent to initiate litigation, in the form of a demand letter, specifying “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.” See Fla. Stat. § 627.736(11)(b)3.