15 Fla. L. Weekly Supp. 823a

Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter that included copy of previously submitted claim form for single MRI service billed by medical provider complied with statute — Fact that claim form states amount in excess of MRI fee schedule does not render demand letter defective — Further, any defect in failing to state exact amount of claim was waived by insurer’s failure to raise defect in response to demand letter — No merit to argument that demand letter must account for deductible or calculate percentage payable

HORIZON MEDICAL GROUP, INC., as assignee of MONIQUE WILLIAMS, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-16532 SP23 05. April 16, 2008. Eli Breger, Judge. Counsel: David S. Kuczenski, Paul K. Schrier, P.A., Miami, for Plaintiff. Monica Barnes, Office of the General Counsel, Coral Gables, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT SUFFICIENCY OF DEMAND LETTER

THIS CAUSE having come before the Court on Defendant’s Motion for Final Summary Judgment as to the sufficiency of the presuit demand letter and the Court having listened to the argument of Counsel, reviewed the Pleadings, applicable case law and being otherwise advised, the Court finds as follows:

1. The Defendant does not dispute that its insured, MONIQUE WILLIAMS, was involved in an automobile accident on NOVEMBER 15, 2002.

2. The Defendant admits in its answer that at the time of the accident, a policy of insurance providing personal injury protection benefits issued by the Defendant was in effect and provided coverage to MONIQUE WILLIAMS.

3. On January 13, 2003, the Plaintiff rendered MRI services to Monique Williams, who assigned the PIP benefits to the Plaintiff.

4. The Plaintiff submitted a CMS 1500 medical claim form to the Defendant in the amount of $1,200.00, which was received by the Defendant on January 21, 2003. The Defendant did not issue payment or an explanation of benefits.

5. The Defendant received from the Plaintiff a statutory pre-suit demand letter which included the demand letter, a copy of the CMS 1500 claim form representing the services rendered and the date the services were rendered and an assignment of benefits form.

6. The Defendant did not respond to the demand letter.

7. Since the Plaintiff has standing through the assignment of benefits, the Plaintiff subsequently brought this action against the Defendant, insurer, seeking payment of unpaid personal injury protection insurance benefits, including the PIP benefits and the consumer price index contained in Section 627.736(5)(b)5, Florida Statutes.

8. The Defendant answered the complaint with three affirmative defenses including: the services were allegedly not reasonable, related or necessary, the HCFA 1500 (now CMS 1500) medical bill was allegedly deficient due to an alleged Box 31 violation, and that the Plaintiff allegedly failed to submit a statutorily compliant presuit demand letter, pursuant to 627.736(11), Fla. Stat., alleging the amount did not specifically include the amount claimed at 80% or take into consideration the policy deductible.

9. The Defendant filed its Motion for Final Summary Judgment wherein the Defendant asserts that the pre-suit demand submitted by the Plaintiff was defective insomuch as it failed to state the “exact amount” which the Plaintiff believed was due and owing at the time the pre-suit demand was served.

For the reasons set forth below, the Defendant’s Motion for Final Summary Judgment is hereby DENIED.

Section 627.736(11), Fla. Stat., requires that prior to the filing of an action for unpaid personal injury protection insurance benefits, the claiming party must serve the insurance company with a pre-suit demand letter. Section 627.736(11)(b)(3), Fla. Stat., provides that the demand letter must include:

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 (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.

“When the language of [a] statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and ordinary meaning.” Knox v. Adventist Health Sys./Sunbelt, Inc., 817 So.2d 961, 962 (Fla. 5th DCA 2002). When a statute is not plain on its face as to its application to a case, however, courts are required to “resort to rules of statutory construction in order to ascertain the legislative intent in its enactment.” Bolden v. State Farm Mutual Automobile Ins. Co., 689 So.2d 339, 342 (Fla. 4th DCA 1997).

The statute contemplates two alternative means by which the party sending the pre-suit demand may advise the insurance company of the dates of service and types of services at issue. First, the statute provides that the party sending the pre-suit demand letter may include with the demand letter an “itemized statement” created for purposes of inclusion with the pre-suit demand letter. Such an “itemized statement” is not one of the forms which satisfies the requirements of Section 627.736(5)(d), Fla. Stat., and is not the statutorily mandated form.

Alternatively, the statute also expressly provides that instead of creating an “itemized statement” for use with the demand letter, the CMS 1500 “previously submitted may be used as the itemized statement.”¹ Such a CMS 1500 form would contain dates of service, the types of services rendered, information regarding the identity of the insured, the date of accident, and the amounts charged for each service. A copy of a CMS 1500 form previously submitted would necessarily not reflect credits for payments received subsequent to the initial submission of the billing nor would it reflect interest which has accrued.

The Defendant’s adjuster, Laura Gracia, whose transcript was filed in opposition to Defendant’s Motion for Final Summary Judgment provided the following testimony:

Q. Did United Automobile receive a demand letter from my office prior to the filing of this lawsuit?

A. Yes.

. . .

Q. Is exhibit number two a copy of the demand letter that United Automobile received from my office?

A. Yes.

Q. Is the assignment of benefits attached to the demand letter?

A. Yes.

Q. Is there anything in this demand letter that did not put United Automobile on notice that this lawsuit was going to be filed.

A. No.

There is no dispute in this matter that the pre-suit demand letter received by the Defendant included a copy of the CMS 1500 form for the single MRI service billed by the Plaintiff, which CMS 1500 form was a copy of the one previously submitted to and received by the Defendant. Accordingly, the Court finds the pre-suit demand letter at issue in this matter complied with the express terms of the statute.

The Court does not agree with the Defendant’s argument that the mere fact that the CMS 1500 form states an amount in excess of the MRI fee schedule renders the pre-suit demand letter defective. With regard to MRI’s and the MRI fee schedule, the Defendant insurer is aware of the amount which is payable. Additionally, given that submission of a CMS 1500 form with an amount different than the fee schedule amount does not provide a defense to payment, submission of the CMS 1500 form with the demand letter cannot thereby render the demand letter defective. See United Auto. Ins. Co. v. Presgar Medical Imaging (a/a/o Dexter Hepburn), Dade County Circuit Court Appellate Division, Case # 04-061 AP, A-1 Mobile MRI (a/a/o Michael Emekekqe) v. United Auto. Ins. Co., 11 Fla. L. Weekly Supp. 936a, (Fla. Cty. Ct., 17th Jud. Cir.); One Stop Medical, Inc., (a/a/o Cleveland Deveraux) v. United Auto. Ins. Co., 11 Fla. L. Weekly Supp. 831a (Fla. Cty. Ct. 11th Jud. Cir.); A-1 Mobile MRI (a/a/o Hilda Perreira) v. United Auto. Ins. Co., 11 Fla. L. Weekly Supp. 1024a (Fla. Cty. Ct., 17th Jud. Cir.). The Court finds that the matter of Hernandez v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 232c (Fla. Cir. Ct. (App.) 11th Jud. Cir. 2007) is factually distinguishable from the present matter because in Hernandez, the loss wages lawsuit was filed prior to submission of any pre-suit demand letter and the amount of the claim did not specify the dates of wages claimed. Furthermore the Court does not agree with the holding in Fountain Imaging of West Palm Beach, LLC v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (Fla. Cir. Ct. (App.) 15th Jud. Cir. 2007).

The Court further finds that to the extent that the pre-suit demand was in some manner defective for failing to state the “exact amount” which the Plaintiff seeks as payment in this lawsuit, any such defect was waived by the actions of the Defendant, and the Defendant is estopped from relying on any such alleged defect in defense of the claim. Specifically, since it tendered no response to the demand letter from the Plaintiff, the Defendant failed to raise the demand letter defect now complained of in its response to the demand letter. Under such circumstance, it was reasonable for the Plaintiff to believe that it had done all that was necessary in notifying the Defendant of its claim prior to the filing of the lawsuit. See Brooks v. City of Miami, 161 So.2d 675 (Fla. 3d DCA 1964); Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla. 1965); Kibbe v. City of Miami, 138 So. 171 (Fla. 1931).

As it is the public policy behind the pre-suit notice requirements under the sovereign immunity statutes and medical malpractice statutes, the public policy behind the pre-suit demand requirement found with Section 627.736(11), Fla. Stat., is to permit a pre-suit investigation and to facilitate prompt resolution and settlement of claims, thereby avoiding litigation. See generally, Patry v. Capps, 633 So.2d 9 (Fla. 1994); and Rabinowitz, supra. The intent of the pre-suit notice demand letter requirement was satisfied herein. The Defendant was afforded an opportunity to reconsider its reimbursement decision made to the Plaintiff prior to the filing of the lawsuit. Based upon the facts appearing on the record, it is apparent that the Defendant received the demand letter, reviewed its reimbursement decision and determined that no payment was legally due and owing by not responding to the pre-suit demand letter.

Finally, contrary to the Defendant’s argument that the demand letter must account for the deductible or calculate the 80% payable, there is no language in the statute which requires that the demanding party determine if a deductible is applicable to the bills or calculate the 80% payable. Such an interpretation would not only violate the “plain meaning rule” but ignores the fact that the medical provider is ordinarily unaware as to whether or not there is in fact a deductible for the policy or whether or not other bills have already applied to the deductible. Furthermore, the Defendant’s argument ignores the fact that certain policies provide payment at 100% as opposed to the 80% statutory minimum.

The Court notes that an insurer, such as the Defendant, which retains records as to amounts paid, the total amount of bills received, the order in which bills have been received, the manner in which bills have been applied to the deductible, and the remaining insurance benefits, is possessed of greater knowledge with regard to any given PIP claim as compared to an insured or medical provider to determine the amount which remains payable or may be payable under the policy of insurance, particularly where reimbursement allowances are governed by a fee schedule as is the case with an MRI. In the present matter, the Defendant acknowledged receipt of the medical bill for the MRI service at issue, and the MRI report which states that the provider is an “ACR Accredited Provider.” Based on this, the Defendant was possessed of sufficient knowledge to make the determination of the amount owed the Plaintiff.

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¹A CMS 1500 form is the form which satisfies the requirements of Section 627.736(5)(d), Fla. Stat.