15 Fla. L. Weekly Supp. 390b
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter was not deficient for demanding payment for dates of service already paid in full by insurer and claiming inaccurate amount due
ADVANCED CHIROPRACTIC & MEDICAL CENTER CORPORATION, (Shaul Sharon), Plaintiff(s), vs. SECURITY NATIONAL INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-011739 COCE 50. February 8, 2008. Peter B. Skolnik, Judge. Counsel: Gary Marks, Marks & Fleischer, P.A., Fort Lauderdale. John Eckard.
ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF ON ALL ISSUES
THIS CAUSE having come on to be heard before me on Plaintiff’s Motion for Final Summary Judgment as to all issues and the Court having heard the argument of counsel, and being otherwise fully advised in the premises, hereby makes the following findings of fact and rulings:
1. Plaintiff filed a Motion for Final Summary Judgment as to all issues and Defendant filed a Motion for Summary Judgment concerning the failure of Plaintiff to comply with the Pre-Suit Demand letter requirement in that the plaintiff’s demand letter allegedly demanded payment for dates of services that Defendant had already paid in full. Defendant further alleged that the exact amount due was not correct and therefore likewise failed to comply with Fla. Stat. 627.736(11).
2. Plaintiff’s Motion for Summary Judgment addressed the affirmative defenses raised and argued that Defendant waived any defects because of the manner it responded to the Demand Letters.1
3. In support of its Motion for Summary Judgment the Plaintiff filed affidavits of the physician who ordered the treatment attesting in great detail to the medical necessity and relatedness of the ordered treatment; the affidavit of the office manager attesting to the billing and reasonableness of the charges and an affidavit of plaintiff’s counsel attesting to the authenticity of the demand letters and Defendant’s responses.
4. Defendant did not file any affidavits in response to Plaintiff’s attestations of reasonableness, relatedness or medical necessity but instead relied solely on its argument concerning the deficiency of the Demand letters.
5. Plaintiff’s demand letter, which was made a part of the record, indicates that the plaintiff treated between 2 dates, signifying the beginning date of treatment and the last date of treatment and then demanded a specific sum. The amount demanded was less than the amount billed.
6. The insurer’s response reflected dates of service and amounts that had already been paid. It reflected the application of a $1,000.00 deductible along with an 80% reimbursement. It further reflected dates of service it was declining to pay and the amount of those services. It declined to pay a number of services for certain dates of treatment.
7. Suit was filed following a second demand letter in response to which the Defendant reiterated its refusal to pay for certain dates of service.
Based upon the foregoing the court makes the following findings of law:
8. Fla. Stat. 627.736(11) requires that a Demand Letter be sent prior to suit in order to apprise the insurer of a potential lawsuit for failing to pay benefits that the provider claims to be due. The purpose of the Demand Letter is to allow the insurer an opportunity to pay benefits without incurring attorneys’ fees and costs. The statute contains a requirement for an itemized specification, specifying each exact amount, date of treatment service or accommodation and type of benefit claimed to be due. A completed CMS 1500 form (627.736(5)(d)) may be utilized as the itemized statement. It is obvious that an insurer and provider may disagree as to an amount “claimed to be due” but merely because the amount claimed may be different than what may ultimately be due does not render the demand letter defective. The court can envision a situation where a provider may have mistakenly failed to credit a payment that the insurer made or an insurer may discover that a billing that had been submitted was not posted as an amount owed. When this occurs the Demand Letter is not rendered deficient. To hold otherwise would render Demand Letter deficient merely because of rounding errors or calculation errors. Such a harsh result could not be mandated by the statute without undermining the purpose for which the Demand Letter provision exists — to afford the insurer one last opportunity to decide if it is going to avoid litigation and pay what it owes or maintain its previous denials.
9. This result is especially applicable here, where the Defendant never raised issue about its inability or difficulty in reconciling the amount claimed to be due by the provider with its own records. An insurer which denies liability for a claim waives technical defects associated with the specification of proofs required as a condition precedent to filing suit even if the defect is contained in a proof already furnished. Taylor vs. Glen Falls Insurance Co., 44 Fla. 273, 32 So. 887 (Fla. 1952). Accord Guarantee Mutual Fire Insurance Co. vs. Jacobs, 57 So.2d 845 (Fla. 1952). The rationale for this is that it would be futile to require the performance of a useless act. If the insurer would continue to deny plaintiff’s claim (as they have on each occasion they received a demand) then mandating additional compliance would have no effect on fulfilling the demand letter’s purpose of avoiding further litigation.
It is hereby
ORDERED AND ADJUDGED that said Motion be and the same is hereby granted.
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1Defendant responded to the first demand letter denying responsibility for any additional payment and outlined the dates it had paid, the amount and the dates of service it denied. It pointed out that the Demand Letter was insufficient because it had been sent to the wrong individual. The Plaintiff corrected the deficiency pointed out in the first Demand Letter and sent a second Demand and Defendant again responded by reiterating the same denial but failed to raise any defects with this submission. Rather, Defendant’s response acknowledged receipt of Plaintiff’s demand letter in accordance with Fl. Stat. 627.736(11). Plaintiff filed suit after the second demand, and outlined the dates it had paid, the amount and the dates of service denied.
