15 Fla. L. Weekly Supp. 1196a
Insurance — Personal injury protection — Demand letter is not deficient for failing to state 80% of exact amount due where letter demands payment of sum that is 80% of total amount billed — Failure to include deductible in calculation of amount demanded does not render letter insufficient — Demand letter that fails to state correct date of accident, claim or policy number substantially complied with statute where copies of bills listing correct claim number were attached to letter — Insurer that ignored demand letter and belatedly raised issue of technical errors in letter after suit was commenced waived right to challenge sufficiency of letter — Because timeliness of submission of medical bills to insurer is determined by date of mailing rather than date of receipt, litigation adjuster’s affidavit stating that bills were not received does not rebut postmark and certified mail receipt showing bills were timely mailed — Medical provider’s motion for summary judgment on affirmative defenses of insufficient demand letter and late billing is granted
EDUARDO J. GARRIDO, D.C., P.A., as assignee of Angelica Rodriguez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 07-2697 CC 26 (2). September 9, 2008. Robin Faber, Judge. Counsel: Christian Carrazana, Panter, Panter, & Sampedro, P.A., Miami, for Plaintiff. Paula Ferris, Office of General Counsel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT’S AFFIRMATIVE DEFENSE ON DEMAND LETTER & LATE BILLING
THIS ACTION came before the Court on June 25th, 2008 on Plaintiff’s motion for summary judgment on Defendant’s affirmative defense on demand letter and late billing; and upon hearing the arguments of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
FINDINGS OF FACT
1. This is an action for declaratory relief pursuant to the Florida Declaratory Judgment Act, Ch. 86, et seq.
2. At all times material, Defendant and Angelica Rodriguez, entered into a contract of insurance for no fault insurance benefits.
3. At all times material, the policy was in full force and effect.
4. The effective dates of the policy are as follows: October 26th, 2006 through October 26th, 2007.
5. The claimant, Angelica Rodriguez, was involved in a motor vehicle accident on or about November 21st, 2006; and suffered personal injuries as a result of said accident.
6. Plaintiff submitted a claim for personal injury protection benefits to Defendant, in which Plaintiff submitted medical expenses for services rendered to the claimant.
7. The claimant began her course of treatment on November 29th, 2006.
8. Plaintiff mailed a notice of initiation of treatment by certified mail to Defendant within twenty one days from the first date of service. The postmark date of the envelope containing the notice is December 14th, 2006.
9. According to the certified return receipt and delivery confirmation from the U.S. postal service website, the notice was delivered to Defendant on December 19th, 2006.
10. Plaintiff mailed a first batch of medical bills to Defendant by certified mail on or about January 9th, 2007 in the sum of $3,282.00 for dates of service November 29th, 2006 through January 8th, 2007. The postmark date of the envelope containing the bills is January 9th, 2007.
11. According to the certified return receipt and delivery confirmation from the U.S. postal service website, Defendant received the first set of bills on January 11th, 2007.
12. Plaintiff, thereafter, submitted two other sets of bills for dates of service January 12th, 2007 through January 31st, 2007; and February 9th, 2007 through March 9th, 2007.
13. After Defendant refused to pay the medical expenses, Plaintiff submitted a pre-suit demand letter attaching all the medical bills previously submitted by certified mail on or about March 26th, 2007.
14. The demand letter listed an incorrect date of accident, claim and policy number; but the medical bills attached to the demand lists the correct date of accident and claim number.
15. Defendant did not respond to the demand in writing or otherwise.
16. After Defendant ignored the demand, Plaintiff filed an action for declaratory relief where Plaintiff alleged in the complaint that a bona fide dispute exists between the parties whether the bills constitute a covered loss under the policy — i.e., bills for services that were medically necessary and related.
17. Defendant alleged as an affirmative defense that Plaintiff’s pre-suit demand letter is defective in that it fails to state the exact amount due at eighty percent; and that it did not state the correct date of accident, claim or policy number.
18. In addition, Defendant alleged as an affirmative defense that Plaintiff’s first set of bills for dates of service November 19th, 2006 through January 8th, 2007 were untimely.
19. Plaintiff alleged as an affirmative defense in a reply to the answer that Defendant waived its right to defend on the grounds that Plaintiff’s pre-suit demand letter is defective.
20. Plaintiff now moves for summary judgment on Defendant’s affirmative defenses on demand letter, late billing, and on Plaintiff’s waiver defense as it relates to the demand.
FINDINGS OF LAW
21. The moving party on a motion for summary judgment bears the burden of proving the nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The burden of proving the nonexistence of such issues is not shifted to the nonmoving party unless the movant has successfully met his burden. Id. at43. If the burden is shifted, the nonmoving party may not merely assert that a genuine issue of fact does exist, but must come forth with evidence sufficient to demonstrate an issue of material fact. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences or if it tends to prove issues, then summary judgment is improper. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985).
22. The first question before the Court is whether Plaintiff’s pre-suit demand letter complies with § 627.736(11)(a), Florida Statutes, (2003), which states in relevant part:
“(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 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.
2. The claim number or policy number which such claim was originally submitted to the insurer.
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) . . . may be used to as the itemized statement.”(emphasis added)
23. The Court does not need to decide whether Plaintiff’s demand isdefective for failure to state eighty percent of the exact amount due where in this case, the letter states that Plaintiff is demanding payment in the principle sum of $6,596.00; which is eighty percent the total amount billed — i.e., $8,245.00. Although the amount does not appear to include the deductible, the statute does not require that a pre-suit demand must state eighty percent of the amount due; which includes the deductible in the calculation. The statute only says that a pre-suit demand must specify “[t]o the extent applicable . . . an itemized statement specifying each exact amount . . . .” The Court is not free to edit statutes or add requirements that the legislature did not include. Meyer v. Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999).
24. There is a line of cases from the county and circuit courts where it has been held that a demand is deficient for failure to state the exact amount due where the demand does not account for payments made. See e.g., Chambers Medical Grp. Inc., a/a/o Marie St. Hillare v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Jud. Cir. App. 2006); Urgent Care Center, a/a/o Jose Vargas v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 779b (Fla. Dade Cty. Ct., 2006) (Pooler, J.). There is disagreement on the issue. See contra Advanced Chiropractic & Medical Ctr. Corp., a/a/o Shaul Sharon v. Security Nat’l Ins. Co., 15 Fla. L. Weekly Supp. 390b (Fla. Broward Cty Ct. 2008) (Skolnik, J.). The Court, however, finds that the cases in which the courts have found that a demand letter is deficient for failure to account for payments are distinguishable because in the present case, no payments have been made. See Rapid Rehabilitation Inc., a/a/o Veronica Graham v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 180a (Fla. Broward Cty. Ct., 2006) (Beller, J.).
25. The Court, moreover, finds that the demand letter substantially complies with the statute. It has been said that “there must be ‘some’ compliance before there can be ‘substantial’ compliance.” Gulf Power Co. v. Stack, 296 So.2d 752, 754 n.3 (Fla. 1st DCA 1974). Without question, there was some compliance with the statute notwithstanding the technical errors Defendant complains of — i.e., failure to state the correct date of accident, claim or policy number.1 Substantial compliance lies in the present case where the demand submitted to Defendant attached legible copies of the original bills that were previously submitted to Defendant; which lists the correct claim number.
26. Defendant’s argument that there must be strict adherence to the statute is one that has been made and rejected in non PIP cases where Florida Courts have found substantial compliance notwithstanding technical errors in a party’s attempt to comply with a statute. See e.g., Intern’l Kaolin Co. v. Vause, 55 Fla. 641, 46 So. 3 (Fla. 1908) (Clerical errors and technical omissions in records should be disregarded, and a substantial compliance with the statute should be held sufficient.); Patry v. Capps, 633 So.2d 9 (Fla. 1994) (Plaintiff’s pre-notice to commence medical malpractice action substantially complies with statute where service was perfected by hand delivery, not by certified mail as required by statute.). In Russell v. Farrey’s Wholesale Hardware Co., 163 So.2d 513 (Fla. 3rd DCA 1964), the Third District held the trial court did not err in granting a mechanics lien on the basis of substantial compliance with the mechanics lien statute; and where the appellant was not prejudiced by the lack of strict adherence to the statute. In the present case, it cannot be said that Defendant was prejudiced by the scrivenor’s error in the demand where the medical bills attached thereto lists the correct claim number.
27. The Court also finds that Defendant waived its right to challenge the sufficiency of the demand. Defendant ignored the demand and belatedly raised the issue after suit commenced to the detriment of Plaintiff. See Stand Up MRI of Boca Raton, P.A., a/a/o Ramon Herrera v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 886 (Fla. Broward. Cty. Ct. 2007) (Dishowitz, J.) (Demand letter attaching HCFA form was sufficient; and if it were insufficient, insurer’s failure to respond to demand would have resulted in waiver of demand letter defense.) Generally, a party asserting waiver need not demonstrate prejudice unless waiver is solely premised on delay in asserting a known right.2 See Graham Contracting Inc. v. Flagler County, 444 So.2d 971, 972 (Fla. 5th DCA 1983); Beverly Hills Development Corp. v. George Wimpey of Florida Inc., 661 So.2d 969, 970 (Fla. 5th DCA 1995); Finn v. Prudential Bach-Securities Inc., 523 So.2d 617, 619 (Fla. 4th DCA 1988). The delay in complaining of the alleged technical errors until suit commenced prejudiced the Plaintiff where Plaintiff could have cured the defects before suit commenced by resubmitting a second demand; or explaining the discrepancies to Defendant assuming Defendant responded to the demand. Defense counsel, however, argues that Defendant is under no obligation under the statute to respond to the demand. Although the statute does not require a response, equity dictates that Defendant cannot invite suit by ignoring the demand and then sandbag the plaintiff by challenging its sufficiency. The District Court in VonDrasek v. City of St. Petersburg, 777 So.2d 989, 991 (Fla. 2nd 2000), in its discussion of the statutory pre-suit notice requirement for personal injury claims to a state agency, said that “the notice requirement is not intended to be a special “gotcha” that allows governmental entities to sandbag plaintiffs; it functions as a tool to allow these entities to identify and settle claims on a timely basis without the expense of extended litigation.” Needless to say, the purpose of statutory pre-suit notice requirement in the PIP statute is no different than the pre-suit notice requirement discussed by the District Court in VonDrasek. The pre-suit notice requirement in the PIP statute was not intended as a mechanism for insurers to sandbag plaintiffs; but instead, as a last ditch effort to resolve PIP claims without litigation.
28. The next and more difficult question is whether a genuine issue of material fact exists regarding whether Plaintiff’s bills for dates of service November 19th, 2006 through January 8th, 2007 were timely. In support of Plaintiff’s motion for summary judgment, Plaintiff served an affidavit from Plaintiff’s records custodian stating that the bills were delivered by the U.S. postal service via certified mail. Attached to the affidavit is a letter from the Plaintiff addressed to Defendant enclosing the medical bills with a copy of the envelope reflecting a postmark date of January 9th, 2007.3 The affidavit also attaches a certified return receipt and delivery confirmation from the U.S. postal service website reflecting the bills were received by Defendant on January 11th, 2007. Defendant’s litigation adjuster, on the other hand, states in a sworn affidavit that the bills were not received until Defendant received Plaintiff’s pre-suit demand letter.
29. The mail box rule provides that a package or letter properly addressed and mailed creates a rebuttable presumption that same was received by the addressee. Scutieri v. Miller, 584 So.2d 15, 16 (Fla. 3rd DCA 1991). “The presumption that arises from the mail box rule rests upon the common experience and inherent possibility that a letter properly mailed will be received.”4 Walenczyk v. Roy, 2006 WL 574264 (Conn. Super. 2006). The rule also provides that a letter properly addressed and mailed must be treated as being received by the addressee unless there is evidence to rebut the presumption. Brake v. State Unemployment Appeals Comm’n, 473 So.2d 774 (Fla. 3rd DCA 1985). Generally, the presumption of receipt is rebutted where there is a denial of receipt; which creates a question of fact. Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996); Scutieri, 584 So.2d at 16.
30. The Court, however, finds that the mail box rule does not control the present case because receipt is not the issue. Whether bills are timely under the PIP statute depends on when they were mailed, not received:
“[T]he statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment services rendered up to, but not more than, 75 days before the postmark date of the statement.”
§ 627.736(5)(c)(1) Florida Statutes, (2003) (emphasis added). “One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla. 1992). “If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” Id. at 473. The term ‘postmark’ under § 627.736(5)(c)(1) is defined as “an official postal marking on a piece of mail; specifically: a mark showing the post office and date of mailing.”http://www.merriamwebster.com/dictionary/po stmark.(emphasis added) The postmark date of the envelope in which the first set of bills were submitted is January 9th, 2007; thus the statement of charges fall within the 75 day billing cycle since the notice of initiation treatment was submitted timely.
31. The Court finds that the adjuster’s affidavit where the adjuster states that the bills were not received does not create a genuine issue of material fact. It has been held that convincing evidence of mailing is not rebutted solely by evidence that it was not received where the question in dispute is not receipt, but instead when or whether a parcel was mailed. Best Meridian Ins. Co., v. Tuaty, 752 So.2d 733, 737 (Fla. 3rd DCA 2000); Service Fire Ins. Co., v. Markey. 83 So.2d 855, 856 (Fla. 1953). The evidence of mailing filed by the Plaintiff in the present case is ‘convincing’; which prohibits Defendant from questioning the mailing solely by denying receipt. Cf.Best Meridian Ins. Co., 752 So.2d at 737 (Insured could challenge mailing by solely denying receipt where insurer’s proof of mailing did not rise to “convincing” level.) Although Best Meridian and Fire Service were cases that involved a policy provision which imputes notice to the insured once a notice of cancellation is mailed regardless of whether there is actual receipt, the legal issue decided in each case is analogous, if not the same, as the question here — i.e., whether and when the parcel containing the bills was mailed; and whether mailing can be challenged solely by denying receipt where there is convincing evidence of mailing? Thus, because there is convincing evidence of mailing, and that it was timely, Defendant cannot challenge the mailing solely by asserting that it did not receive the bills to create a genuine issue of material fact.
ACCORDINGLY, it is hereby ORDERED & ADJUDGED that Plaintiff’s motion for summary judgment is GRANTED.
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1Although Defendant complains that the demand does not list the correct date of accident, § 627.736(11) does not require that a claimant or provider list the date of accident in the demand. The attached bills, however, do state the correct date of accident.
2A waiver arising from delay, not inconsistent acts, where the delay gives the party an undue advantage or causes prejudice to another is not a true waiver, but instead an estoppel based on laches. See Hlad v. State, 565So.2d 762, 780 (Fla. 5th DCA 1990) (“Laches is an affirmative defense; an implied waiver arising from delay in asserting rights.”) “Laches is based upon an unreasonable delay in asserting a known right which causes undue prejudice to the party against whom the claim is asserted.” Appalachian Ins. Co., v. Olsen, 468 So.2d 266, 269 (Fla. 2nd DCA 1985) (citations omitted).
3In addition, a notice of initiation of treatment is attached showing that it was timely submitted to Defendant by certified mail.
4“The mailbox rule, also called the “postal acceptance rule”, is a principle of the common law of contracts that basically provides that acceptance by mail of an offer is ordinarily effective upon depositing that acceptance in the mailbox.” Lee v. State, 632 A.2d 1183, 1186, n.3 (Md. Ct. App. 1993).
