15 Fla. L. Weekly Supp. 1203a
Insurance — Personal injury protection — Demand letter sent less than 30 days after insurer’s receipt of bills was premature, and prematurity cannot be cured by passage of time — Further, complaint filed before all bills were overdue and before 15-day window created by demand letter had passed was prematurely filed — Insurer has not waived right to assert premature demand letter as defense — Insurer is not required to pay for treatment rendered and is entitled to judgment as matter of law
FAITH MEDICAL GROUP, a/a/o ANA BRITO, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit for Miami-Dade County, Civil Division. Case No. 07-6579 CC 26 (3). July 9, 2008. Rehearing Denied September 8, 2008. Patricia Marino Pedraza, Judge. Counsel: Paula E. Ferris, Office of the General Counsel, United Automobile Insurance Company, Coral Gables.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF PREMATURE DEMAND LETTER, AND FINDS THAT THE DEMAND LETTER WAS PREMATUREAND IN VIOLATION OF F.S. 627.736(11)
THIS CAUSE came before the Court on the 3rd of June, 2008 on Plaintiff’s Motion For Summary Judgment on the sole issue of Premature Demand Letter and after hearing argument from counsel,
It is ORDERED AND ADJUDGED
1. The Plaintiff’s Motion for Summary Judgment on Defendant’s defense of Premature Demand Letter is denied, and this Court finds that the Demand Letter was Premature and in Violation of F.S. 627.736(11).
2. This court finds the facts to be as follows:
The Plaintiff mailed the bills to the Defendant for dates of service 8/23/07-9/13/07, on or about 9/14/07. Defendant received bills on or about 9/18/07. Another set of bills for dates of service 9/14/07-10/2/07, were sent on or about 10/3/07 to the Defendant by the Plaintiff, and received on or about 10/6/07. The demand letter was sent, on behalf of the Plaintiff by counsel of record, on 10/11/07, prior to the bills becoming due and owing; and prior to the 30 day window allowed by statute had expired. The Plaintiff’s suit was also filed prematurely on 11/15/07.
Thus, per the F.S. 627.736(11), the Plaintiff has failed to meet the conditions precedent to filing this lawsuit, and the Defendant has not been furnished with proper statutory notice.
3. Florida Statute 627.736(11)(a) requires as follows:
“As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of 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).”
4. Florida Statute 627.736(4)(b) provides:
“Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 35 days after such written notice is furnished to the insurer. . . . However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.”
4. Pursuant to Florida No-Fault Statute, the Plaintiff’s bills do not become overdue until the 31st day after receipt. As such, Plaintiff’s demand was prematurely submitted for the bills that were received by United Auto on 9/18/07 and 10/6/07.
CONCLUSIONS OF LAW
Pursuant to F.S. § 627.736(11)(a), the Plaintiff had a statutory obligation to submit a demand letter prior to initiating litigation. The Florida legislature added F.S. § 627.736(11) to require that plaintiffs furnish insurers with specific pre-suit notice of the claim and their intent to initiate litigation in order to curb the flood of PIP litigation. See, 7 Fla.Prac., Motor Vehicle No-Fault Law (PIP) §11.1 (2003-2003 ed.)
The demand letter requirements are clear and unambiguous. “When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning.” See, Ortega v. United Automobile Insurance Company, 847 So.2d 994 (Fla. 3rd DCA 2003), citing Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla. 2000).
Pursuant to the F.S. §627.736(4)(b), Defendant United Automobile has 30 days to pay or have reasonable proof not to pay the bills after receipt of the medical bill submitted by the Plaintiff. Thus, the bills do not become “overdue” until the 31st day. The bills were sent on 9/14/07, and received by the Defendant on or about 9/18/07. Another set of bills were sent on or about 10/3/07 to the Defendant by the Plaintiff, and received on or about 10/6/07. The Demand Letter was sent on 10/11/07. As such, Plaintiff did not put Defendant on pre-suit notice of its intent to initiate a lawsuit to collect these bills. Plaintiff has failed to meet its condition precedent to filing suit and thus states no cause of action to collect such bills.
Plaintiff’s counsel admits that the demand letter submitted to the defendant was premature in violation of the statutory requirements; however he contends that it is cured by the passage of time. This Court finds that the statute specifically states that the demand letter serves “a condition precedent to filing any action for benefits” and as such it must be served pursuant to the statutory requirements. The legislature did not carve out any exception or create a safe harbor for failure, under any circumstances, of a claimant or medical provider to provide a demand letter prematurely. “When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning.” Id. Ortega.
A strict adherence to the plain words of the statute serves several important functions. It promotes the legislative goal of reducing unnecessary litigation to avoid the overburdening of the courts with actions that could be resolved before suit. Furthermore, the requirements of Fla. Stat. 627.736(11) and 627.736(4)(b) were designed, in part, to give the insurer an opportunity to properly investigate within the 30 day window whether or not the bills should be paid; and the filing of the Demand letter after the 30 day window has passed gives the insurer an additional 15 day re-capture window to pay the bill before suit is filed and to avoid litigation. The facts are clear that the Defendant was not given the proper time period to investigate the bill, before the bill became due and owing. In fact, the Demand letter was sent prematurely, cutting the statutory 30 day window not allowing the bills to become due and owing. Thus, the Demand letter was premature and in violation of the statute, and cannot be cured by the passage of time.
Additionally, this court finds that the Plaintiff’s suit was filed prematurely1 before all of the bills became due and owing, and before the 15 day window for the demand letter had completely passed. Thus, the Plaintiff’s suit was in clear violation of the statutory requirements. The Florida Supreme Court, held in, Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446, 449, (Fla. 1990), if presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend. In the instant case, the complaint was filed basically at the same time the demand letter was filed, because the 15 day window had not passed before suit was filed.2
In Leslie Pearlstein, M.D., and Robert Thacker, M.D., et al. v. John T. Malunney and Earla Malunney, 500 So.2d 585 (2DCA 1987), (the fact pattern is distinguishable, however the reasoning that the court applies is applicable) the court rejected the trial court’s findings that the serving of the complaint in a malpractice complaint will satisfy the statutory notice. Instead, the court presumed that the legislature meant what it said when it distinguished the filing of a complaint from the furnishing of a pre-filing notice. . . . . Accordingly, we cannot simply abate what is for all intents and purposes, a non-existent lawsuit.”
In the instant case, the Plaintiff argues that the passage of time will cure all of the defects in this case, such as the premature demand letter that deprived the Defendant of the 30 day window, and the premature suit that further deprived the Defendant of the 15 day window. This Court disagrees, and for all intensive purposes the lawsuit is non-existent. This case was not ripe for suit at the time in which the suit was filed, because the Plaintiff had failed to comply with the statutory requirements for filing a demand letter and subsequently the filing of this lawsuit. Instead, this Court will presume that the legislature meant what it said when it distinguished the time period of filing demand letter and time period for filing the complaint.
Also, this Court finds that the Defendant has not waived its right to allege the defense of filing a premature demand letter since the Plaintiff prematurely filed suit before case was ripe for suit. The time frame for the bills to become due and owing, and the time frame for the Demand letter, had not yet passed before suit was filed. Additionally, this court finds that the Plaintiff’s counsel should have known the time frame in which it chose to file its own documents. Furthermore, the Plaintiff was placed on immediate notice of the prematurity of the demand letter once the Defendant filed its pleadings in response to the premature suit. Despite Plaintiff’s argument that the burden is on the Defendant to seek dismissal or abate, the Third DCA, in Progressive Express Insurance Co., Inc. v. Louis R. Menendez, Jr. and Cathy Menendez, 979 So.2d 324, 33 Fla. L. Weekly D811 (Fla.App. 3 Dist. Mar. 19, 2008), clearly disagreed with this position, and found that the plaintiff-insured had the burden to request abatement, or voluntarily dismiss case. In fact, the court stated that “Progressive’s answer, proposed amended answer, and motion for summary judgment all put the plaintiffs on notice of their failure to comply with the statutory requirement. At those points in the proceedings, the plaintiffs could have asked the trial court to abate the premature action until they complied with the statute, or could have voluntarily dismissed and re-filed their action after complying with the presuit demand requirements.” This court also finds that the Plaintiff’s counsel knew or should have known that demand letter and suit was premature since they were the ones that mailed the document and filed suit; the plaintiff was further placed on notice once the Defendant filed their pleadings. Plaintiff’s counsel could have at any point simply dismissed the case and re-filed once the proper notice was given, or filed a motion for an abatement giving the Defendant the proper time period in which to comply with the statutory requirement. However, the Plaintiff chose not to do so.
Clearly, based on the foregoing, the Plaintiff has failed to meet its statutory requirements of submitting a demand letter compliant with the statute and thereby has failed to meet a condition precedent to filing the instant action. Accordingly, United Auto is not required to pay for any treatment or services rendered by the Plaintiff and is entitled to judgment as a matter of law.
5. Based on the above, this Court denies Plaintiff’s Motion for Summary Judgment of the issue of Premature Demand Letter, and finds that the Plaintiff’s lawsuit was also premature, in violation of F.S. 627.736. The court further finds that the violation of the statute was not cured by the passage of time, nor has the Defendant waived their right to assert premature demand letter as a defense. The court also finds that the proper remedy of this issue is to abate the claim for the remainder of the time period.3
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1The Plaintiff has also admitted that the suit was filed prematurely in relation to the last set of bills.
2If the Defendant was given the proper 30 days and proper 15 days per statute the Plaintiff’s complaint as filed on November 15, 2007, is within the 45 day window that the Defendant should have had prior to filing of the suit.
3The Angrand v. Fox, 552 So.2d 1113 (Fla. 3rd DCA 1989), case involved filing a lawsuit too early. The Florida appellate court held that the appropriate remedy for the premature suit was not outright dismissal with prejudice, but rather was an abatement or stay of the claim for the remainder of the ninety-day notice period.
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ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION & FINAL JUDGMENT
THIS ACTION came before the Court on Plaintiff’s motion for summary judgment on Defendant’s affirmative defense alleging premature demand letter; and upon denying Plaintiff’s motion for summary judgment and finding that Defendant is entitled to judgment based on the undisputed fact that Plaintiff’s pre-suit demand was served prematurely in violation of § 627.736(11), it is hereby ORDERED & ADJUDGED that Plaintiff’s motion for reconsideration is DENIED; that Plaintiff, FAITH MEDICAL GROUP INC., as assignee of Ana Brito, shall take nothing by this action; and that Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, shall go hence without day.
