15 Fla. L. Weekly Supp. 156b
Insurance — Personal injury protection — Demand letter — Sufficiency — Presuit demand letter with attached ledger identifying all charges and not acknowledging payments made by insurer did not comply with statute — Summary judgment entered in favor of insurer
RICHARD J. ROBINSON, D.C., P.A., a/a/o OLIVIA MCGILL, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 06-4104. April 2, 2007. Daniel E. Gallagher, Judge, for Charlotte Anderson, Judge. Counsel: David W. Lipscomb, Lipscomb, Nicholas & Patrick, P.A., Tampa, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER GRANTING MERCURY’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on March 5, 2007 on Mercury’s Motion for Summary Judgment and the Court, having reviewed the file and being otherwise advised in the premises, renders the following findings:
1. Mercury Insurance Company requests this Court enter summary judgment as the pre-suit demand letter, dated January 31, 2006, submitted by Plaintiff to Mercury Insurance Company failed to comply with the requirements of Florida Statute 627.736(11). Mercury argues the letter did not properly identify the amounts claimed to be overdue but simply attached a billing ledger to the pre-suit demand letter identifying all charges. Mercury asserts the ledger failed to identify any payments or credits to be applied to the patient’s account even though the ledger specifically included a category for checks received, credits, payor payments, total received and total adjustments. Thus, the ledger sought the total of all charges, not the amount claimed to be overdue.
2. This Court has reviewed the letter and other evidence presented to the Court and has determined that the pre-suit demand letter and the attached ledger indicate the total charges by Plaintiff to be $1,900.00. The total charges include all services provided by Plaintiff to the patient from July 14, 2005 through August 4, 2005.
3. The ledger specifically indicated that the balance due on the account was $1,900.00. The ledger and pre-suit demand letter failed to acknowledge or identify any payments by Mercury Insurance Company for the services at issue.
4. That the undisputed facts were that Mercury’s obligation was to pay 80% of the total charges, which was $1,520.00. The facts reveal Mercury paid $1,489.04 as of October 24, 2005, prior to receipt of the pre-suit demand letter leaving a maximum outstanding amount due of $30.96.
5. Therefore, the pre-suit demand letter sought payment of $1,900.00, not the outstanding balance of $30.96.
6. It is also undisputed that the suit was filed on February 17, 2006, the 15th day of the 15-day time limit in which the insurer is entitled to pay the benefits under Florida Statute 627.736(11).
7. Mercury paid the remaining balance due of $30.96 within 15 days of receipt of the pre-suit demand letter. However, Plaintiff still seeks additional interest and penalty based on the overdue interest. Further, Plaintiff seeks additional interest.
Based on the above, it is hereby
ORDERED AND ADJUDGED:
1. This Court finds the pre-suit demand letter is not in compliance with Florida Statute 627.736(11) and, thus, Plaintiff failed to meet the obligatory condition precedent to suit.
2. Florida Statute 627.736(11)(b)3 requires the pre-suit demand letter to include “an itemized statement specifying each exact amount due, the date of treatment, service, or accommodation, and type of benefit claimed to be due”. This Court does not find persuasive Plaintiff’s counsel’s argument that the amount claimed to be due is the equivalent of the total charges or that the insurer is required to determine the amount claimed to be due by the Plaintiff since the insurer could calculate the difference of the billed amount and paid amount.
3. This Court is bound by Chambers Medical Group, Inc., (a/a/o Marie St. Hillare) v. Prog. Exp. Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Jud. Cir. (Appellate-Civil), December 1, 2006). Pursuant to Chambers, Plaintiff’s attachment of the ledger simply setting forth the original claim, where partial payment was not reflected on the form or elsewhere in the pre-suit demand letter, fails to set forth the “exact amount claimed to be due”.
4. Plaintiff was required to strictly comply with the notice requirements of F.S. 627.736(11) and, at best, Plaintiff’s pre-suit demand letter presents stale information as to the current amount due based on the ledger’s failure to identify payments that occurred prior to the submittal of the pre-suit demand letter on January 31, 2006. The failure to include the payments totaling $1,489.04 results in Plaintiff failing to strictly comply with the statutory requirements.
5. Based on the lack of any assertions of untimely payments, this Court finds that Defendant must not be held responsible for the defective pre-suit demand letter even if the defect is a result of a defective billing system being utilized by the provider. This Court need not address the Plaintiff’s failure to wait the entire 15 day period before filing suit.
6. This Court finds that summary judgment shall be entered in favor of Mercury Insurance Company and against Plaintiff, Richard Robinson, D.C., P.A., a/a/o Olivia McGill.
7. Based on the representation of the parties during hearing, there were no further issues to be addressed regarding Plaintiff’s complaint against Mercury Insurance Company. Therefore, Mercury Insurance Company shall be deemed the prevailing party as to the Complaint against Mercury Insurance Company. Plaintiff shall take nothing from this action and Mercury Insurance Company shall go hence without day.
8. This Court hereby reserves jurisdiction to address any and all claims contained in Mercury’s counterclaim as well as any and all claims to address and consider entitlement and reasonableness of Defendant’s attorneys’ fees and costs. [See 14 Fla. L. Weekly Supp. 978b.]
