16 Fla. L. Weekly Supp. 579b
Online Reference: FLWSUPP 166ROSAR
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter is not substantially compliant with statute where letter references single date of service but attached HCFA form is for two dates of service, and letter demands payment for “original amount” that is neither original amount billed for either date of service alone nor amount billed for both dates combined — Motion to dismiss granted
MED MANAGE GROUP, INC., (a/a/o DAVID ROSARIO), Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2008-SC-006496 XXXXSB. April 15, 2009. James L. Martz, Judge. Counsel: Lindsay Porak, Law Offices of Stephen D. Deitsch, P.A., Boca Raton, for Plaintiff. Frantz Nelson, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ON DEMAND LETTER
THIS CAUSE having come on to be heard on Defendant’s Motion to Dismiss based upon insufficiency of Plaintiff’s Pre-Suit Demand Letter (brought as a Motion for Summary Judgment) and being otherwise fully advised in the premises, the Court therefore finds as follows:
Statement of Facts
1. This claim arises out of an automobile accident that occurred on or about 8/23/07 involving the Claimant David Rosario.
2. David Rosario sought treatment and medical services from the Plaintiff, which was provided. Plaintiff provided medical services on 1/16/2008, charges totaling $375.00 and on 2/13/2008, charges totaling $375.00.
3. The Defendant, MGA Insurance Company, received Plaintiff’s billing for said services, and issued payment for each bill in the amount of $161.50 pursuant to 200% of the Medicare Part B Fee Schedule for total payments made in the amount of $323.00.
4. Plaintiff elected to seek compensation for the remaining balance. Plaintiff’s legal representative submitted a pre-suit demand letter which was received by the Defendant on March 24th, 2008.
5. Plaintiff’s pre-suit demand letter references only date of service 1/16/08, and calls for payment in the “original amount” of $427.00. The pre-suit demand letter also attaches CMS 1500 forms for dates of service 1/16/08 in the amount of $375.00 and 2/13/08 in the amount of $375.00. Plaintiff’s demand letter also calls for payment of a penalty of “10% of the original amount due” seeking $42.70.
Conclusions of Law
6. Florida Statute §627.736(10)(b) sets forth the requirements for a pre-suit demand letter, and states in relevant part that a demand letter shall include:
“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.”
7. This Court is not of the opinion that a demand letter must be free of error or defect in order to meet statutory requirements. It is the opinion of this Court that the concept of substantial compliance is applicable to the pre-suit demand letter requirements as set forth in Fla. Stat. §627.736(10).
8. However, the facts of this case do not permit this Court to find that Plaintiff’s demand letter is substantially compliant. Plaintiff’s pre-suit demand letter references only a single date of service, yet attaches HCFA forms for both dates of service. In addition, Plaintiff’s pre-suit demand letter references an “original amount” of $427.00, when this is clearly neither the original amount billed for either date of service, nor for both dates of service combined. Finally, Plaintiff’s demand letter calls for payment of an amount of penalty that is clearly also inaccurate.
9. While a demand letter need not be entirely error-free to comply with statutory requirements, it should at a minimum, reflect the correct dates of service and the correct corresponding outstanding balances for which demand is being made. Failure to do so renders the pre-suit demand letter in this case fatally defective.
10. Defendant is seeking summary judgment in the instant case. It is the opinion of this Court that the proper procedural mechanism and remedy for an invalid/insufficient pre-suit demand letter is a dismissal, rather than a summary judgment. Progressive Express Ins. Co., Inc. v. Menendez, 979 So.2d 324, 333 (Fla. 3d DCA 2008). As such, the Court shall treat Defendant’s action as a Motion to Dismiss.
Accordingly, it is ORDERED and ADJUDGED, the Defendant’s Motion to Dismiss is hereby GRANTED. Plaintiff’s complaint is hereby dismissed without prejudice. Plaintiff shall submit a new and valid pre-suit demand letter prior to re-filing suit.
