15 Fla. L. Weekly Supp. 1209a
Insurance — Personal injury protection — Demand letter — Demand letter to which insured attached patient ledger and therapy notes, but which did not otherwise state exact amount claimed to be due, fails to satisfy statutory requirements — Further, demand letter was not sent to person specified by insurer for purposes of receiving such notices
DOREEN LEONARD, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Civil Division. Case No. 2008CC1072NC. October 14, 2008. Kimberly C. Bonner, Judge. Counsel: Thomas S. Hudson, Hudson Law Office, Sarasota, for Plaintiff. Edwin V. Valen, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before this Honorable Court on September 29, 2008, upon Defendant’s Motion for Summary Judgment, and the Court having heard argument of counsel, having reviewed the file herein, and being otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED:
1. There are no genuine issues of material facts in dispute in that the facts presented by the Defendant in its Motion for Summary Judgment and its Affidavit of State Farm representative, Thuy Murray, are uncontested as it pertains to Plaintiff’s January 29, 2007 correspondence that purports to be a “demand letter” pursuant to Florida Statute §627.736(11).
2. The “demand letter” submitted by the Plaintiff has failed to state the exact amount claimed to be due and was not sent to the person specified by the insurer for the purposes of receiving notices pursuant to Florida Statute §627.736(11). Instead, Plaintiff merely attached a billing ledger and therapy notes which did not distinguish between any payments previously made, identify what dates of service were actually due, or identify what charges for treatment were actually due.
3. Florida Statute §627.736(11) is very specific regarding the requirements of the Demand Letter and what is expected in order to comply with the statute.
4. Florida Statute §627.736(11) (2007) states, in pertinent part: (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:
3. To the extent applicable, 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. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. . .
. . .
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if so requested by the claimant in the notice, when the insurer pays the claim. Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. . .
(d) If, within 15 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer. . . .[emphasis added]
5. Plaintiff simply attached a patient ledger from the medical provider and attached therapy notes for Plaintiff’s treatment with said medical provider.
6. Plaintiff also failed to send its “demand letter” to the person specified by the insurer for the purposes of receiving notices pursuant to Florida Statute §627.736(11).
7. Merely attaching a patient ledger and therapy notes does not provide the insurer with the “exact amount due” as this does not account for the amounts applied to any deductible, amounts reduced to reasonable charges, or any other partial payments made.
8. Therefore, and in light of the above, it is the determination of this Court that Plaintiff’s Demand Letter fails to comply with the requirements of Florida Statute §627.736(11) (2007) as a matter of law.
9. Because Plaintiff has already voluntarily dismissed a cause of action pertaining to the charges at issue in the instant lawsuit once, Plaintiff was not able to voluntarily dismiss its action in order to cure the defects above without such voluntary dismissal operating as a dismissal with prejudice.
10. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED. However, this Court will grant Plaintiff leave to refile its Complaint in the event Plaintiff cures the defects in its Demand Letter and State Farm chooses not to pay the claim at that time.
FINAL JUDGMENT
IT IS HEREBY ADJUDGED that Plaintiff, DOREEN LEONARD, take nothing by this action and Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
