16 Fla. L. Weekly Supp. 267b
Online Reference: FLWSUPP 163JEAN
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter to which was attached itemized statement that set forth name of medical provider who rendered treatment and each exact amount, date of treatment, and type of benefits claimed to be due, and which demanded full amount of benefits claimed to be due was legally sufficient — Further, where insurer failed to provide provider with any response asserting that demand letter was not in compliance with statutory requirements and failed to raise alleged insufficiency as affirmative defense, insurer waived defense
GLENN D. BERGER, D.C., P.A., (Marie Jean, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 06-001157(51). January 6, 2009. Martin R. Dishowitz, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Fesner Petion, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 3, 2008 for hearing of Defendant’s Motion for Final Summary Judgment, the Court having reviewed the Motion and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
Background:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits.
2. On or about July 22, 2002, the patient, Marie Jean, sustained injuries in an automobile accident for which she sought treatment from the Plaintiff, GLENN D. BERGER, D.C., P.A.
3. The Plaintiff timely submitted claims for insurance benefits to Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”), and Defendant failed to provide benefits.
4. On August 13, 2004, Plaintiff submitted its “Demand Letter Under FL Statute 627.736(11).” UNITED time-stamped the Demand Letter as received on August 19, 2004. UNITED neither responded to the Demand Letter nor provided any Explanation of Benefits.
5. Plaintiff filed its Complaint on or about October 23, 2005, and Defendant filed its Answer and Affirmative Defenses on January 19, 2007.
6. On or about June 23, 2008, Defendant filed a Motion for Final Summary Judgment alleging Plaintiff “submitted a defective demand letter prior to litigation that failed to comply with the statutory requirements set forth in F.S. § 627.736(11).”
Conclusions of Law:
7. Florida Statute § 627.736(11)(b) sets forth the requirements of a Demand Letter:
“The demand letter shall state with specificity, to the extent applicable the name of the 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.”Fla. Stat. §627.736(11)(b).
8. The statute clearly states that “either an itemized statement or HCFA forms satisfies the requirement.” Rapid Rehabilitation, Inc. v. United Automobile Insurance Co., 14 Fla. L. Weekly Supp. 180a (2006) (citing to Open MRI of Miami-Dade, Ltd. a/a/o Joseph Vincent v. Progressive Express Insurance Co., No. 04-9201 (Fla. 11th Cir. Ct. Dec. 25, 2005)).
9. Plaintiff’s Demand Letter of August 13, 2004 does in fact meet all of the statutory requirements under §627.736(11), in that Plaintiff attached an itemized statement which sets forth the name of the medical provider who rendered treatment and services, and each exact amount, date of treatment, service or accommodation, and the type of benefit claimed to be due.
10. Furthermore, the Plaintiff demanded the full amount set forth in the claims submitted, and thus Plaintiff needed only to attach either the HCFAs or an itemized statement to satisfy the statutory requirements. See Open MRI of Miami-Dade. Ltd. v. Progressive Express Insurance Co., No. 04-9201 (Fla. 11th Cir. Ct. Dec. 25, 2005); Chiro-Medical Rehabilitation of Orlando, Inc. v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 162b (2004). “When the Plaintiff is claiming the full amount of benefits the insurer is in a better position to determine the amount due because the insurer possesses all policy information including but not limited to the applicable deductibles.” Id.; See Rapid Rehabilitation, Inc., 14 Fla. L. Weekly Supp. 180a (2006); Chiro-Medical Rehabilitation of Orlando, Inc. v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 162b (2004).
11. In support of its position, the Defendant relies on the following cases: Hernandez v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 232c (Fla. 11th Cir. Ct. Jan. 17, 2007); Chambers Medical Group v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 556 (Fla. 13th Cir. Ct. March 18, 2005); Family Chiropractic Health Center v. First Floridian Auto & Home Insurance Co., 10 Fla. L. Weekly Supp. 358a (Fla. Hillsborough Cty. Ct. Feb. 25, 2003); Simon v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 347a (Fla. Palm Beach Cty. Ct. Feb. 5, 2004); Mobile Diagnostic Imaging v. Allstate Indemnity Insurance Co., 11 Fla. L. Weekly Supp. 446a (Fla. Marion Cty. Ct. March 15, 2005); Urgent Care Center v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 673b (11th Judicial Cir., 2005). All of these cases are distinguishable from the instant case. In all of the aforementioned cases, the plaintiffs failed to comply with the requirements of § 627.736(11) by either failing to attach an itemized statement of medical services and/or lost wages or failing to submit an actual pre-suit demand letter, and thus summary judgment was entered in favor of the defendants. The case at hand differs in that the Plaintiff has satisfied all necessary statutory requirements of a pre-suit Demand Letter, and therefore summary judgment is improper.
12. Furthermore, UNITED sent no Explanation of Benefits in response to the original claim submission. It is incumbent upon the insurer to provide the Plaintiff with an itemized specification of reduced or rejected claims detailing the reason for nonpayment, per Florida Statute 627.736(4)(b). “Pursuant to Florida Statutes 627.736(4)(b), an itemized specification requires a charge by charge specification, stating why the bill was denied or reduced, and what is specifically needed to process the claim.” Mandell Chiropractic & Rehabilitations Centre v. United Automobile Insurance Co., 12 Fla. L. Weekly Supp. 396a (17th Cir. Ct. Sept. 29, 2004). “Not only is such an itemized statement required by Florida Statutes 627.736(4)(b), but it makes good sense on public policy grounds because the prompt exchange of information before suit is filed reduces the amount of litigation filed and allows claimants to resolve or correct problems with claims before suit is filed. Id.
13. Notwithstanding the fact that Plaintiff’s Demand Letter was legally sufficient, the Defendant also failed to raise the alleged non-compliance with §627.736(11) as an affirmative defense, and thus said defense is waived.
14. Florida Rule of Civil Procedure 1.140(b), requires that certain defenses must be pleaded affirmatively. “An ‘affirmative defense’ is any defense that assumes the complaint or charges it to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question.” State v. Cohen, 568 So.2d 49, 51 (Fla. 1990).
15. Florida Rule of Civil Procedure 1.140(b), requires an affirmative defense to be raised in a responsive pleading, otherwise the defense is waived. Furthermore, affirmative defenses may not be raised for the first time on a motion for summary judgment. Agudo, Pineiro & Kates, P.A. v. Harbert Construction Co., 476 So.2d 1311, 1315 (Fla. 3d DCA 1985).
16. In Copeland v. Albertson’s Inc., 32 Fla. L. Weekly D322a (Fla. 2d DCA 2007), the Court reversed an order granting summary judgment because the defendants did not plead as an affirmative defense that the plaintiff’s claims were barred by a particular statute. The Court held “a defendant cannot present evidence of a statutory defense unless that defense is pleaded.” Id. (citing to Protective Cas. Ins. Co. v. Killane, 459 So.2d 1037, 1038 (Fla. 1984); Tobias v. Osorio, 681 So.2d 905, 908 (Fla. 4th DCA 1996)).
17. UNITED did not provide the Plaintiff with any response nor did UNITED assert that aforesaid Demand Letter was not in compliance with the statutory requirements of § 627.736(11). The Defendant failed to plead the alleged non-compliance properly as an affirmative defense, and therefore the statutory defense is waived.
18. This Court finds that the Demand Letter submitted by the Plaintiff was sufficient as a matter of law, and that, even if the Demand Letter were insufficient, UNITED’s failure to respond to the Demand Letter or to issue an Explanation of Benefits as to why the claim would not be paid, and UNITED’s failure to raise the alleged non-compliance with § 627.736(11) as an affirmative defense would have resulted in a waiver of this defense.
Accordingly, it is ORDERED and ADJUDGED, the Defendant’s Motion for Final Summary Judgment is hereby DENIED.
