13 Fla. L. Weekly Supp. 369a

Insurance — Personal injury protection — Demand letter — Where demand letter identifies provider of services as physician, but services were actually rendered by professional association in which physician is sole shareholder, provider failed to satisfy condition precedent to filing suit — Claim form — Where demand letter and assignment of benefits identified physician as provider of services, HCFA form which identified professional association as service provider and reflected tax identification number of association was not properly completed

MANUEL V. FEIJOO, M.D., and MANUEL V. FEIJOO, M.D., P.A., A/A/O BRIAN MURILLO, Plaintiffs, vs. NEW JERSEY RE-INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-3362-SP 26 (02). January 23, 2006. Bronwyn C. Miller, Judge. Counsel: Valerie Mano. Jose P. Font, Vernis & Bowling of Broward, P.A., Fort Lauderdale.

ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT

THIS CAUSE, having come before the Court upon Defendant’s Amended Second Motion for Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby GRANTS Defendant’s motion on the following grounds:

Undisputed Facts:

1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that is alleged to have occurred on October 26, 2003. As a result of the accident, Brian Murillo allegedly sustained injuries. Murillo received medical treatment rendered by Plaintiffs, MANUEL V. FEIJOO, M.D. and MANUEL V. FEIJOO, M.D., P.A. on November 20, 2003.

2. Murillo executed an irrevocable assignment of benefits with MANUEL V. FEIJOO, M.D.

3. A bill for services rendered was submitted to NEW JERSEY RE-INSURANCE CO. and said bill was not paid.

4. The pre-suit demand letter forwarded to Defendant identified the provider of services as MANUEL V. FEIJOO, M.D.

5. The Health Insurance Claim Form (hereinafter “HCFA form”) submitted with the pre-suit demand letter identified the provider of services as MANUEL V. FEIJOO, M.D., P.A.

6. Said HCFA form reflected the tax identification number of MANUEL V. FEIJOO, M.D., P.A., not the tax identification number of MANUEL V. FEIJOO, M.D.¹

7. Defendant did not pay the bill, and suit was filed on May 12, 2004.

8. Defendant filed a Motion for Summary Judgment alleging that Plaintiffs are without standing to bring said suit.

Conclusions of Law

Summary Judgment Standard:

It is well-established that summary judgment may only be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). The Court finds that there is no genuine issue of material fact and Defendant is entitled to summary judgment as a matter of law.

Demand Letter:

Section 627.736(11) Fla. Stat. (2003) establishes a demand letter as a condition precedent to filing suit:

(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 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).

(b) The notice required shall state that it is a “demand letter under s.627.736(11)” and shall state with specificity:

1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured. . .

3. . . . [T]he name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim . . . (emphasis added).

The language of the statute is clear and unambiguous, thus it must be given its plain meaning. Holly v. Auld, 450 So. 2d 219 (Fla. 1984) (“Courts of this state are without the power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable obvious implications. To do so would be an abrogation of legislative power.”). It is axiomatic that the Court is not free to add provisions to statutes. Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So. 2d 384 (Fla. 4th DCA 1998). Pursuant to the statute, prior to filing a lawsuit, Plaintiff must provide the insurer with a demand letter identifying the provider of services, along with a copy of the assignment of benefits vesting rights in the claimant if the claimant is not the insured. See Family Chiropractic Center a/a/o Sasso v. First Floridian Auto and Home Ins., 10 Fla. L. Weekly Supp. 358a (February 25, 2003) (Medical provider which did not submit written notice of intent to initiate litigation prior to filing lawsuit failed to satisfy condition precedent to filing suit — summary judgment granted in favor of insurer).

In the instant case, the demand letter fails to appropriately identify the provider of services. The demand letter indicates that MANUEL V. FEIJOO, M.D. was the provider of services, when, in fact, MANUEL V. FEIJOO, M.D., P.A. was the provider of services. Thus, Plaintiff failed to meet a condition precedent to filing suit, and “any attempt to file a demand letter after litigation has been commenced would be a nullity and suit would still be premature.” Physician’s Referral & Medical Services, Inc. a/a/o Porter v. Progressive Insurance Co., 11 Fla. L. Weekly Supp. 831b (June 23, 2004).

HCFA Form:

In 2003, the Florida Legislature amended Section 627.736(5)(d) to include a professional license number requirement. In relevant part, the statute set forth the following: “All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” (emphasis added). Further, the statute expressly states that “[f]or purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.” (emphasis added). “Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Insurance Company v. Rodriguez, 808 So.2d 82, 85 (Fla. 2002); Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla. 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). The use of the term“shall”clearly conveys the mandatory requirement intended by the legislature in enacting the statute.

In the instant case, the HCFA form was not properly completed to reflect a provider of services consistent with the pre-suit demand letter and the assignment of benefits.

Thus, “. . . this Court finds that Box 25 must contain the true federal identification number of the health care provider/supplier who rendered the service.” New Hampshire Indemnity Co. v. Equinox Business Credit Corp., 10 Fla. L. Weekly Supp. 172a (9th Cir., Dec. 17, 2002); Medical Rehab. of South Fla. v. Progressive Express Insur. Co., 11 Fla. L. Weekly Supp. 1020b (17th Cir. Aug. 19, 2004) (“The plaintiff failed to comply with applicable law by not providing the insurer with the valid federal taxpayer identification of the entity that rendered service and received an assignment of benefits for those services.”).

Finally, Section 627.736(5)(d), too, operates as a condition precedent to filing suit. Thus, a retroactive submission of a complete HCFA form does not cure the procedural violation.

The Defendant’s Motion for Summary Judgment is hereby GRANTED; however, this finding does not reach the merits of the case.

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¹Plaintiff filed the affidavit of Manuel V. Feijoo, M.D. stating that he was the sole shareholder in Manuel V. Feijoo, M.D., P.A. and that the two were “alter-egos.” The term “alter-ego” is used in analyzing whether or not the court should “. . . look through the screen of corporate entity to the individuals who compose it in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual owning all or most of its stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose.” Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114 (Fla. 1984). This Court recognizes that a “[c]orporation’s separate legal existence from the shareholder must be respected.” Raymond B. Yates, M.D. P.C. Profit Sharing Plan v. Hendon, 124 S.Ct. 1330 (1994). Thus, the doctrine has no factual application to the legal issues involved in the instant case.

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