15 Fla. L. Weekly Supp. 665b
Insurance — Personal injury protection — Demand letter — Validity — Demand letter that otherwise complies with statute but seeks specific amount for MRI in excess of statutory fee schedule is valid where insurer failed to send explanation of benefits in response to original claim — No error in denying insurer’s motion to amend answer and affirmative defenses to allege that demand letter was invalid where amendment would be futile — Error to fail to address amendment alleging that policy deductible provision was applicable — On remand trial court to determine applicability of deductible provision
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. LANDAU RADIOLOGY, LLC, a/a/o Jane Forgione, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-20212 CACE (11). L.T. Case No. 06-6359 COCE (51). March 27, 2008. On Motion for Rehearing May 8, 2008. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Coral Gables. Chris E. Boyer, Margate. Dean Mitchell, for Appellee, Forgione.
OPINION
(BARRY E. GOLDSTEIN, J.) THIS CAUSE is before the Court upon Appellant United Automobile Insurance Company’s appeal of the trial court’s Order Granting Final Summary Judgment in favor of Appellee Landau Radiology, LLC., a/a/o Jane Forgione. The Court having considered the record, applicable law and being duly advised in premises, dispenses with oral argument, and finds and decides as follows:
This case arises out of a dispute over billing for an MRI scan performed by Appellee following an automobile accident. Appellee timely submitted a claim to Appellant for an MRI provided in the amount of $1,707.33. Appellant sent no Explanation of Benefits in response to the claim submission as required under Fla. Stat. 627.736(4)(b). Once the bill became overdue, Appellee submitted a pre-suit demand letter to Appellant for $1,707.33 pursuant to Fla. Stat. 627.736(11). However, this amount was in excess of the maximum compensable amount pursuant to Fla. Stat. 627.736(5)(b)(5).
Appellee subsequently filed a complaint for breach of contract seeking payment of $1,020.46, an amount under the statutory limit. After Appellee moved for summary judgment, but before the hearing on the motion for summary judgment, Appellant filed a motion to amend its answer and affirmative defenses to allege that Appellee failed to comply with Fla. Stat. 627.736(11), by demanding an amount in excess of the statutory limit. The trial judge issued an order denying Appellant’s motion to amend stating that the proposed amendment “would be futile because the demand letter was valid for an MRI where the defendant paid nothing and the demand letter was valid other than the amount claimed exceeded the MRI fee schedule.” Appellant now argues that the trial court erred in denying Appellant’s motion for leave to amend and in granting summary judgment in favor of the Appellee.
Under Florida’s personal injury protection statute, a provider may not send a pre-suit demand letter until the claim is overdue. Fla. Stat. §627.736(11). A claim for PIP benefits is overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of the claim. Fla. Stat. §627.736(4)(b). This section further requires that “[w]hen an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay. . . .” Id. “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.” Fla. Stat. §627.736(11)(a). The statute further requires that the demand letter under §627.736(11) shall state with specificity, inter alia, an itemized statement specifying the exact amount claimed to be due. Appellant argues that Appellee did not satisfy a condition precedent to bringing the action because the demand letter demanded an amount in excess of the maximum compensable amount pursuant to Fla. Stat. 627.736(5)(b)(5).
This Court finds that the trial court correctly found that Appellee’s demand letter was valid. A pre-suit demand letter for an overdue claim which otherwise complies with Fla. Stat. §627.736(11)(a), but seeks a specific amount is excess of the maximum compensable pursuant Fla. Stat. § 627.736(5)(b), is valid where the insurer fails to send to the provider an itemized specification of each item that the insurer had reduced, omitted, or declined to pay in response to the original claim submission pursuant to Fla. Stat. §627.736(4)(b).
This Court further finds that the trial court did not err in denying Appellant’s motion to amend because the amendment would be futile. Pursuant to Fla. R. Civ. P. 1.190(a) leave of court to amend pleadings shall be given freely when justice so requires. “As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege has been abused; or the amendment would be futile.” Karn v. Caldwell Banker Residential Real Estate, Inc., 705 So. 2d 680 (Fla. 4th DCA 1998) (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302 (Fla. 1st DCA 1991). Accordingly, it is
ORDERED AND ADJUDGED that the trial court’s Order Granting Final Judgment in favor Appellee, Landau Radiology, LLC., (a/a/o Jane Forgione is AFFIRMED.
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ORDER GRANTING APPELLANT’S MOTION FOR REHEARING
(BARRY E. GOLDSTEIN, J.) THIS CAUSE comes before the Court on Appellant’s Motion for Rehearing of this Court’s opinion affirming the trial court’s order granting final judgment in favor of Appellee, Landau Radiology, LLC. The Court, having considered the motion, having reviewed the record, and being otherwise duly advised in premises, finds and decides as follows:
This Court did not address the applicability of the insurance policy’s $1,000.00 deductible provision in its opinion affirming the trial court’s order granting final judgment in favor of Appellee. The trial court denied Appellant’s Motion to File Amended Answer because the amendment would be futile, as to the third affirmative defense, since the court had found that the demand letter was valid. The amended answer, however, would not be futile as to second affirmative defense which alleges that the policy’s $1,000.00 deductible provision was applicable. The trial court did not address the policy’s $1,000.00 deductible provision in its order granting final judgment in favor of Appellee for $1,126.78. The Court, therefore, finds that the trial court erred in denying Appellant’s Motion to File Amended Answer as to the amended answer’s second affirmative defense. Accordingly, it is hereby
ORDERED AND ADJUDGED that Appellant’s Motion for Rehearing of this Court’s opinion affirming the trial court’s order granting final summary judgment in favor of Appellee is GRANTED. The case is REMANDED to the trial court for a determination of the applicability of the insurance policy’s deductible provision. The lower court is affirmed in all other respects.
