14 Fla. L. Weekly Supp. 1069a
Insurance — Personal injury protection — Demand letter — Sufficiency — Letter demanding that insurer pay entire amount of insured’s medical bills without taking into account numerous payments made by insurer and claiming interest without specifying dates of service for which payment was allegedly late or amount of interest accruing per diem does not satisfy condition precedent to filing suit
MARK MACHUGA, D.C., P.A., as assignee of Charles Andre, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05-SC-002074. August 16, 2007. Donald L. Marblestone, Judge. Counsel: Dale T. Gobel, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando. Lee Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on July 19, 2007, on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised in the premises, hereby finds as follows:
1. On October 1, 2004, Plaintiff, through its attorneys in this matter, forwarded a demand letter purporting to comport with § 627.736(11), Florida Statutes. The demand letter claimed that STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“State Farm”) owed Mark Machuga, D.C. (“Plaintiff”) the total amount of $5,210.00, the total amount charged by the Plaintiff for dates of service November 17, 2003 through April 16, 2003. The demand letter also claimed interest due, but failed to state the alleged amount of such interest due as of the date of the demand letter, or the amount of interest accruing per diem.
2. The evidence is undisputed in this case that as of the date of the demand letter, the full amount it requested was incorrect and not overdue. Specifically, the Plaintiff’s demand letter requested Defendant remit $5,210.00, when the uncontroverted record evidence reveals that amount was never due. Further, the demand letter failed to take into account the numerous payments made by the Defendant which would have significantly reduced the $5,210.00 Plaintiff alleged was owed.
3. On October 4, 2005, the Plaintiff filed its “Bill of Particulars” in this matter, which alleged that the Plaintiff was now only seeking interest on bills submitted for dates of service 12/17/03 through 12/24/03. The October 1, 2004, demand letter, however, did not specifically reference those dates of service as allegedly paid late, or state a specific amount of interest allegedly owed for those dates. Instead, the demand letter sought the entire amount of the Plaintiff’s bills. See Florida Emergency Physicians Kang & Associates, M.D., P.A. v. Progressive Casualty Ins. Co., 13 Fla. L. Weekly Supp. 511b (Fla. 18th Jud. Cir. 2006) (demand letter which specifies full amount of charges and not that demand was for interest only, fails to place the Defendant on notice as to what was at issue); Florida Emergency Physicians Kang & Associates, M.D., P.A. v. Progressive Casualty Ins. Co., 13 Fla. L. Weekly Supp. 391a (Fla. 18th Jud. Cir. 2005) (same); Chiro-Medical Rehabilitation of Orlando, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 162b (Fla. 17th Jud. Cir. 2004) (demand letter fails to comport with material requirements of statute when it fails to provide accurate total amount claimed to be due).
4. The Plaintiff’s demand for State Farm to pay the entire amount due, which was incorrect as revealed by the record evidence, along with an unspecified claim for interest, does not satisfy the plain language or the intent of § 627.736(11), Florida Statutes, which requires a potential Plaintiff to specifically identify its claim and allow an insurer the opportunity to avoid litigation. See Hernandez v. Progressive, 14 Fla. L. Weekly Supp. 232c (11th Jud. Cir. (Appellate) 2007); Chambers Medical Group, Inc. v. Progressive Express, 14 Fla. L. Weekly Supp. 207a (13th Jud. Cir. (Appellate) 2006).
5. Based on the foregoing, the Plaintiff’s demand letter fails to meet the conditions precedent to instituting this action. Specifically, it is undisputed that the Plaintiff’s demand letter, including the attachments, did not identify the particular amount(s) at issue, did not state that the amount Plaintiff is seeking is for interest only, or provide the exact amount of interest the Plaintiff claims it is owed. As such, the Plaintiff’s demand letter does not comply with unambiguous requirements of Florida Statute §627.736(11)(b)(3) and Defendant is entitled to judgment as a matter of law.
Based on the foregoing findings of fact and conclusions of law, it is hereby
ORDERED and ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and against MARK MACHUGA, D.C., P.A. Plaintiff shall take nothing by this action, and State Farm shall go hence without day.
2. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm and against Plaintiff, including jurisdiction to determine the issue of entitlement and the amount of such attorneys’ fees.
