15 Fla. L. Weekly Supp. 1189a
Insurance — Personal injury protection — Demand letter that did not state exact amount claimed, but instead attached billing ledgers for three medical providers and claimed entire amount billed without deduction of any amounts insurer had paid, did not satisfy condition precedent of filing demand letter — Standing — Assignment — Insured who had not obtained revocation of assignments given to two providers did not have right to serve demand letter for those providers’ bills
ISMENIA TAMAYO-RODRIGUEZ, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-CC-3100. October 23, 2008. Wilfredo Martinez, Judge. Counsel: Michael Udowychenko, Kissimmee. Eric Biernacki, Adams & Diaco, P.A., Orlando.
ORDER GRANTING DEFENDANT’S SUMMARY FINAL JUDGMENT
This CAUSE having come before this Court on Defendant’s Motion for Summary Final Judgment and Motion for Protective Order, and the Court having heard the argument of counsel, and being otherwise fully advised in the premises, finds as follows:
1. Plaintiff filed a PIP suit against Defendant for reduced and/or unpaid medical bills for treatment rendered by Rehab Right, Mid Florida Imaging, and Samy Bishai, M.D., to Plaintiff, as a result of injuries she allegedly sustained in an automobile accident which occurred on April 16, 2006.
2. Plaintiff sent a demand letter to Defendant on December 11, 2006, allegedly pursuant to Florida Statute §627.736(11). Billing ledgers from Rehab Right, Mid Florida Imaging, and Samy Bishai, M.D.,were attached to the purported demand letter.
3. Pursuant to §627.736(11), Florida Statutes (2006), a presuit demand letter is a statutory condition precedent to filing any action for benefits under the PIP statute and must state with specificity “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.” (Emphasis added)
4. The demand letter did not specify the exact amount being claimed. Instead, Plaintiff simply attached billing ledgers for Rehab Right, Mid Florida Imaging, and Samy Bishai, M.D., to its demand letter and claimed the full amount billed by each provider was due without taking into account any amounts that Defendant had paid.
5. When the language of the statute is clear and unambiguous, and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. State of Florida v. Warren, 796 So. 2d 489 (Fla. 2001). A strict reading of the statute requires Plaintiff to have provided Defendant with the precise amount claimed to be due. By Plaintiff’s failure to do so, it has failed to comply with the §627.736(11) statutory condition precedent.
6. Furthermore, Plaintiff failed to obtain revocations of assignments of benefits, or reassignments, from Rehab Right and Mid Florida Imaging for the treatment at issue prior to submitting her demand letter to Defendant, even though Plaintiff had previously executed valid assignments of benefits in favor of Rehab Right and Mid Florida Imaging.
7. According to Florida law, “only the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time. . .and the one that owns the claim must bring the action if an action is to be brought.” Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001).
8. Thus, Plaintiff did not have any right or authority to serve the presuit demand letter for Rehab Right’s and Mid Florida Imaging’s bills because, at that time, Rehab Right and Mid Florida Imaging owned the causes of action.
Accordingly, it is hereby
ORDERED and ADJUDGED that Defendant’s Motion for Summary Final Judgment is GRANTED; it is further
ORDERED and ADJUDGED that Plaintiff shall take nothing by this action and Defendant shall go hence without day.
