17 Fla. L. Weekly Supp. 1047a

Online Reference: FLWSUPP 1710DEME

Insurance — Personal injury protection — Demand letter — Sufficiency — Statutory requirement to provide copy of insurer’s notice withdrawing payment and itemized plan for future treatment in demand letter only applies where medical provider seeks to obtain authorization for future treatment despite insurer’s termination of benefits, not where provider only seeks payment for treatment already rendered

DEMETREE CHIROPRACTIC GROUP as assignee of RONALD GRAY, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 07-SC-5103. June 23, 2010. Donald L. Marblestone, Judge. Counsel: Steven M. Johnson, Johnson & Williams, P.A., Orlando and Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Plaintiff. Dale T. Gobel, Gobel Flakes, LLC, Orlando, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter came before the court on April 20, 2010, on Defendant’s Motion for Summary Judgment, and, having reviewed the Defendant’s motion and Plaintiff’s memorandum of law in opposition thereto, and having heard argument of counsel and been advised in the premises, the court finds that:

1. The Plaintiff, Demetree Chiropractic, provided chiropractic treatment to State Farm’s insured for injuries sustained in an automobile accident and covered under the insured’s personal injury protection coverage. The insured assigned to Demetree all right, title and interest in his claim for PIP benefits for the subject treatment.

2. State Farm required that their insured attend a compulsory medical examination pursuant to the Florida No-Fault Law and the terms of the insured’s policy. The examining physician issued a report to State Farm giving the opinion that further chiropractic treatment would not be reasonable, necessary, or related. Based on that opinion, State Farm terminated benefits for further chiropractic treatment.

3. After State Farm’s termination of benefits, the insured continued to receive chiropractic treatment from Demetree, and State Farm denied payment for the additional treatment.

4. Pursuant to Florida Statute 627.736(11)¹, Demetree furnished State Farm with the statutorily required notices of intent to initiate litigation (“Pre-Suit Demand”) for the dates of service that State Farm had denied.

5. It is undisputed that Demetree did not include a “treatment plan” for proposed future treatment with any of the Pre-Suit Demand letters.

6. On or about November 14, 2007, the Plaintiff initiated this action against State Farm to recover personal injury protection benefits for the subject treatment.

7. State Farm moved for summary judgment on March 2, 2010, based on its assertion that Demetree’s Pre-Suit Demand letters failed to satisfy the statutory pre-suit notice requirements and that; Demetree had therefore failed to meet a condition precedent to filing suit.

8. Section 627.736(11), Fla. Stat. (2007) states, in pertinent part.

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.

9. State Farm’s motion for summary judgment argues that, even though Demetree’s demand was for treatment that had already been rendered and the bills submitted and denied by State Farm, Demetree was required under the statute to “attach a copy of the insurer’s notice withdrawing such payment” and “provide an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.”

10. Demetree argues in opposition that the statutory requirement to provide a copy of the insurer’s notice withdrawing payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary only applies when a claimant seeks to obtain authorization, in spite of the insurer’s termination of benefits, for additional treatment not yet rendered. Demetree argues that by its plain language, this portion of the statute cannot apply to the instant case in which treatment has already been rendered, billed to the insurer, and payment denied.

11. Having considered the foregoing arguments of counsel, the statutory language at issue, and the pertinent pleadings and papers, this court finds that:

a. To determine the intent of the statute, the Court should look to the statute’s plain meaning, V.K.E. v. State, 934 So. 2d 1276, 1286 (Fla. 2006). A Court should not add requirements to the statute that do not exist. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, *85 (Fla. 2001). If the statute is clear and unambiguous, a Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So.2d 299, (Fla. 4th DCA 2000). See also Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning).

b. Based on the clear and unambiguous language of the statute, the requirement for including a copy of the notice withdrawing payment of future treatment and an itemization of the type, frequency and duration of future treatment only applies, by definition, when a demand letter is requesting future treatment not yet rendered to the patient.

c. In the instant case, the treatment at issue was rendered by Demetree, and a bill submitted to State Farm for medical treatment, and then separately considered by and denied by State Farm. At no time did Demetree request State Farm to consider payment or authorization for “future treatment not yet rendered.”Therefore, “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” was not required.

IT IS ADJUDGED that:

Defendant’s Motion for Summary Judgment is DENIED.

__________________

¹Section 627.736(11) was renumbered effective January 1, 2008 as section 627.736(10), and demand letters were submitted under both section numbers based on the date of the letters. The substance of the Pre-Suit Demand section of the statute did not change other than with respect to the number of days the provider must give to the insurer before filing suit. The new section requires a thirty (30) day notice while its predecessor required only a fifteen (15) day notice. Dates of service for which benefits were denied after suit was filed were incorporated in this action by amendment.