15 Fla. L. Weekly Supp. 820a
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter that failed to name any medical provider who rendered services or include itemized statement of each exact amount at issue was legally insufficient — 2003 amendment to section 627.736(11)(a) eliminated argument that insurer’s anticipatory breach of policy by denying coverage based on unpaid premium relieved insured of requirement to file demand letter — Standing — Assignment — Where insured had assigned benefits to medical provider and did not obtain revocation of assignment prior to filing demand letter, insured did not have standing to seek payment for bills at issue
STEPHEN BOND, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-CC-20612, Div. Q. June 3, 2008. Dawn K. Hudson, Judge. Counsel: James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville. Kelly B. Hampton, Kelly B. Hampton & Associates, P.A., Jacksonville.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION RE: INSUFFICIENT DEMAND LETTER AND LACK OF STANDING
This cause having come on to be heard on May 29, 2008 and the Defendant having filed a written Motion for Summary Disposition re: Improper Demand Letter and Lack of Standing. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire with counsel for Plaintiff, Kelly B. Hampton, Esquire. Having considered the arguments of counsel, the record in this case, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. The Defendant insured Plaintiff, STEPHEN BOND, (“Plaintiff”) under a policy of insurance that provides $10,000.00 in No-Fault/Personal Injury Protection (“PIP”) insurance benefits.
2. Pursuant to the subject policy of insurance, the benefits are payable pursuant to the Florida Motor Vehicle No-Fault Law. The controlling statute is FLORIDA STATUTE § 627.736 (2007).
3. The issue for the Court’s determination is a legal issue as to whether the Plaintiff’s pre-suit demand letter complied with the requirements of FLORIDA STATUTE § 627.736(11) and whether the Plaintiff had standing to bring suit.
COUNT I: INSUFFICIENT DEMAND LETTER
4. The Plaintiff provided Defendant with its pre-suit demand letter dated August 9, 2007, purportedly in compliance with FLORIDA STATUTE § 627.736(11). The pre-suit demand letter sought payment of PIP benefits.
5. FLORIDA STATUTE § 627.736(11) (2007), states in pertinent part,
(11) DEMAND LETTER.
(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 any 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: (emphasis added)
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 upon 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) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
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6. The Defendant contends that the Plaintiff’s demand letter is legally insufficient. With regards to the claim for PIP benefits, the Plaintiff’s demand letter failed to: (1) name any medical provider who rendered treatment, services, accommodations, or supplies that form the basis of such claim; and (2) have an itemized statement specifying each exact amount, the date of treatment, service, or accommodation in violation of the clear requirements of FLORIDA STATUTE § 627.736(11)(b)(3).
7. Plaintiff lists “Not Applicable” in sections #3 and #4 of his demand letter with no attachments of any CMS 1500 forms as permitted by FLORIDA STATUTE § 627.736(11)(b)(3), so as to provide the Defendant with an itemized statement specifying each exact amount at issue.
8. Plaintiff claims that Defendant’s August 21, 2007 response to Plaintiff’s August 9, 2007 demand letter, totally denying coverage due to a failure to pay the outstanding premium, constitutes an anticipatory breach. Plaintiff further claims that the anticipatory breach would relieve Plaintiff of the requirement to comply with FLORIDA STATUTE § 627.736(11). However, this Court is not persuaded by Plaintiff’s claim.
9. Defendant noted that the PIP statute was amended in 2003 to include a significant change to FLORIDA STATUTE § 627.736(11). This change eliminated the language which gave credence to an anticipatory breach argument made by the Plaintiff.
10. In 2002, FLORIDA STATUTE § 627.736(11)(a) contained the following language:
(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that, except with regard to a claim or amended claim or judgment for interest only which was not paid or was incorrectly calculated, such notice is not required for an overdue claim that the insurer has denied or reduced, nor is such notice required if the insurer has been provided documentation or information at the insurer’s request pursuant to subsection (6). 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). (Emphasis added)
11. The Court agrees that the above highlighted portion of the old statute could relieve the Plaintiff of the conditions precedent of filing a demand letter and potentially give rise to an anticipatory breach argument. However, the 2003 amendment eliminated this language and has remained unchanged as shown below. FLORIDA STATUTE § 627.736(11)(a) (2007) states:
(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 any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
12. The Legislature clearly remove this language for a reason and in doing so, eliminated the anticipatory breach argument.
13. The statutory language of FLORIDA STATUTE § 627.736(11) is clear and unambiguous. The legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA 2000). “Where the wording of the [No-Fault] Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language . . . .” Allstate Ins. Co., v. Holy Cross Hosp., Inc., 961 So. 2d 328,334 (Fla. 2007).
COUNT II: LACK OF STANDING
14. Additionally, Defendant presented evidence that CMS 1500 Forms completed by Dr. Kelly J. Huber’s office, Chiropractic Plus, indicated that Plaintiff assigned his rights and benefits to Chiropractic Plus. A true and accurate copy of Dr. Huber’s CMS 1500 Form was attached to Defendant’s Motion for Summary Disposition.
15. An affidavit of Julie Selzer, a State Farm claims representative, was filed as evidence of Defendant’s motion. The affidavit asserted that no documentation was ever received by State Farm to suggest that the assignment was ever revoked.
16. This Court finds that at the time Plaintiff served the pre-suit demand, he acted without any contractual rights to benefits which he had previously assigned to the aforementioned medical provider. Since Plaintiff had previously assigned his benefits and did not obtain a revocation of that assignment of rights and benefits, Plaintiff did not have standing to seek payment for the bills at issue.
17. 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 Mut. Auto. Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). See, Garcia v. State Farm Mut. Auto. Ins. Co., 766 So. 2d 430 (Fla. 5th DCA 2000); Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716 (Fla. 2d DCA 2000). In the instant case, the Plaintiff clearly did not “own” the cause of action at the time he served Defendant with his PSD.
18. This Court finds that there remains no genuine issues as to any material fact, the evidence is clear that the pre-suit demand letter failed to satisfy the statutory conditions precedent of FLORIDA STATUTE § 627.736(11) and Plaintiff lacked standing to bring this suit. The Defendant is entitled to an order granting its motion for summary disposition as a matter of law.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, STEPHEN BOND, take nothing by this action and Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall go hence without day. This Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
