16 Fla. L. Weekly Supp. 264a
Online Reference: FLWSUPP 163BUITR
Insurance — Personal injury protection — Explanation of benefits — Response to presuit demand letter did not satisfy statutory requirement for insurer to provide EOB
DR. ROBERT S. SCHWARTZ, D.C., P.A., as assignee of Merari Buitrago, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08006654 Coce 50. January 23, 2009. Peter B. Skolnik, Judge. Counsel: Cris E. Boyar, Boyar & Freeman, P.A., Margate, for Plaintiff. Brian Pabian, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter coming on to be heard on January 23, 2009, upon the Defendant’s Motion for Partial Summary Judgment, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that:
1. On 9/12/08 the Defendant filed a Motion for Partial Summary Judgment as to Plaintiff’s Count II. In this Count, the Plaintiff claims the Defendant breached the contract of insurance by failing to provide the Plaintiff with an itemized specification as required by §627.736(4)(b) in response to dates of service of 12/10/07 through 2/21/08.
2. The Defendant argues it is entitled to Partial Summary Judgment because the Defendant responded to Plaintiff’s pre-suit demand letter on 4/16/08. Pre-suit demand letters are addressed in §627.736(10).
3. Based on the record presented to this court, there is no record evidence the Defendant responded to Plaintiff’s bills as required by §627.736(4)(b) with a timely itemized specification.
4. The Court finds, as a matter of law, a response to a pre-suit demand letter is not an itemized specification as required by §627.736(4)(b). Further, the document filed by the Defendant could not be construed as an itemized specification.
5. A response to a pre-suit demand letter, if paid properly with interest, penalty and postage, would insulate the Defendant from litigation.
6. An itemized specification of each item the insurer reduced, omitted or declined to pay is a statutory requirement according to §627.736(4)(b) which, as a matter of Florida law, is incorporated into the Defendant’s policy of insurance.
7. Accordingly, Defendant’s Motion for Partial Summary Judgment is hereby denied.
