17 Fla. L. Weekly Supp. 716a
Online Reference: FLWSUPP 1708BRAM
Insurance — Personal injury protection — Demand letter — Sufficiency — Waiver — Where insurer stamped “Treated as Demand” on demand letter that contained inaccurate policy or claim number, wrote correct claim number on letter and sent medical provider letter stating that it had reviewed claim and demand letter and had decided to pay additional amount on claim, insurer waived defense of deficient demand letter
FLORIDA EMERGENCY PHYSICIANS KANG AND ASSOCIATES, MD, PA as assignee of Ivorine Bramwell, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2008-SC-003378. April 13, 2010. Donald L. Marblestone, Judge. Counsel: Jeffrey G. Regenstreif, Bradford Cederberg, P.A., Orlando. Robert D. Bartels, Orlando.
ORDER AND FINAL JUDGMENT
THIS MATTER having come before this Court on Plaintiff’s Amended Motion for Summary Judgment, Plaintiff’s Supplemental Motion for Summary Judgment and Defendant’s Motion for Final Summary Judgment and this Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. Plaintiff’s Amended Motion for Summary Judgment predicated upon admitted admissions is GRANTED;
2. Plaintiff’s Supplemental Motion for Summary Judgment and Defendant’s Motion for Summary Judgment, as both relate to the issue of standing, are MOOT as Defendant withdrew the affirmative defense of lack of standing in a Notice bearing Certificate of Service date March 3, 2010;
3. The remaining issue on Plaintiff’s Supplemental Motion for Summary Judgment and Defendant’s Motion for Summary Final Judgment is compliance with the condition precedent contained in Fla. Stat. §627.736(10) (2008).
4. The undisputed material facts concerning the only remaining affirmative defense are as follows:
A. This is a claim for Personal Injury Protection benefits arising out of a motor vehicle collision that occurred on or about 2/13/2008;
B. The assignor, Ivorine Bramwell, was insured under a PIP policy issued by Defendant, GEICO INDEMNITY COMPANY (hereinafter referred to as “Defendant”), that was in full force and effect on 2/13/2008 and covered 80% of reasonable, related and necessary charges for medical services;
C. Plaintiff billed Defendant $508.00 for services provided on 2/13/2008 to Bramwell. The Parties do not dispute the sufficiency of the billing under Fla. Stat. §627.736 nor the policy of insurance;
D. Defendant paid $220.82 in response to Plaintiff’s bill;
E. Plaintiff sent a demand letter pursuant to Fla. Stat. §627.736(10) (2008) seeking reimbursement of the unpaid amounts for the services performed on 2/13/2008; the demand was received by Defendant on June 12, 2008 — a copy of the first page of the demand letter (the only page that is the subject of the present dispute) sent by Plaintiff is attached to this Order as Exhibit “A.” The Parties agree that Plaintiff’s demand letter did not contain an accurate claim number or policy number as required by Fla. Stat. §627.736(10)(b)(2);
F. Defendant received Plaintiff’s Demand Letter and placed the accurate company claim number on the letter and stamped the letter with the words, “TREATED AS DEMAND” — a copy of the demand after receipt by Defendant is attached as Exhibit “B1” (emphasis in the original); and
G. By letter to Plaintiff dated July 2, 2008, Defendant advised that it would pay most, but not all, of the benefits sought in Plaintiff’s demand. The letter to Plaintiff showed that from Plaintiff’s demand letter Defendant was able to identify the date of service at issue, the amount at issue, the medical provider whose bill was at issue, the date of loss, the name of the insured and the company claim number — a copy of Defendant’s letter to Plaintiff in response to the demand is attached as Exhibit “B2.”
5. Defendant contends that Fla. Stat. §627.736(10)(b)(2) (2008) is to be strictly construed and that the strict meaning of the language used and Plaintiff’s demand letter failing to include an accurate claim or policy number means that the letter does not satisfy the condition precedent to the filing of suit contained in the law. Id.; cf, Chambers Medical Group Inc. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp 207a (Hillsborough Co. Cir. Ct Appellate December 1, 2006).
6. Plaintiff acknowledges and concedes that its demand contains an entirely inaccurate claim or policy number yet contends the theory of waiver is applicable to Defendant’s actions following receipt of the demand letter and that the theory of estoppel prevents Defendant from asserting any defect in the demand letter as an affirmative defense to this action.
7. The notice requirement contained in Fla. Stat. §627.736(10) (2008) is not jurisdictional; rather it is a condition precedent to suit. As such compliance with the statute can be waived. VonDrasek v. City of St. Petersburg, 777 So. 2d 989 (Fla. 2nd DCA 2000). While the letter of the law of Fla. Stat. §627.736(10) was not met to perfection, the purpose of the statute, to give insurers a second opportunity to pay claims and to “avoid needless litigation,” Chambers Medical, supra, was indeed served here.
8. Waiver is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Financial Services Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005) (emphasis added). The concept of waiver has been applied to cases for unpaid personal injury protection benefits by the Fifth District Court of Appeals in Florida Medical Injury Center Inc. v. Progressive Express Ins. Co., __ So. 3d __, [35 Fla. L. Weekly D215b], 2010 WL 198459 (Fla. 5 DCA 2010).
9. Here, Defendant rubber stamped Plaintiff’s demand letter with the words, “TREATED AS DEMAND” and placed the correct claim number on it. See Exhibit B1 attached to this Order and Judgment. Defendant identified the claim, the insured, the date of service at issue, the medical provider, the CPT code in dispute, the amount it had previously paid and obviously made a decision as to what it would be doing, if anything, to avoid litigation. Indeed, Defendant chose to pay an additional amount toward the claim, but not the full amount demanded.
10. Further, Defendant did all of the foregoing and sent Plaintiff a letter in response to the demand inside the thirty (30) days provided by the statute. No reasonable mind can construe Defendant’s response to Plaintiff’s demand as a reservation of its right to assert that Plaintiff failed to comply with the condition precedent to the instant suit laid out in Fla. Stat. §627.736(10). Indeed the opposite is true, Defendant’s letter can only be construed as a waiver of any failing of Plaintiff’s demand letter. The letter begins, “Thank you for your Notice of Intent to Initiate Litigation . . . under Florida Statue (sic) 627.736(10) . . .” The letter then describes that Defendant has reviewed every material detail of both Plaintiff’s demand letter and the original claim and that Defendant has decided to pay an additional amount toward the claim.
11. All together, Defendant’s pre-suit actions with respect to Plaintiff’s demand letter irrefutably support a waiver of the defense it here attempts to assert. The Court is convinced that Defendant would have submitted the exact same response and additional partial payment to Plaintiff if the demand letter had contained the correct claim or policy number. As such, this lawsuit, instituted in reliance upon Defendant’s response to Plaintiff’s demand letter, cannot be considered, “needless litigation.”
Chambers Medical, supra.
12. As stated by the Court with respect to the notice requirement applicable to actions against government entities in VonDrasek, supra, it “is not intended to be a special ‘gotcha’ that allows . . . entities to sandbag plaintiffs; it functions as a tool to allow these entities to identify and settle claims on a timely basis without the expense of extended litigation.” VonDrasek, at 991; see also, Kuper v. Perry, 718 So. 2d 859, 860 (Fla. 5 DCA 1998).
13. The purpose of the notice requirement in the present case is quite similar to the purpose of the requirement at issue in VonDrasek, supra: the notice required by Fla. Stat. §627.736(10) gives insurers a second opportunity to identify and settle claims and again, “avoid needless litigation.” Chambers Medical, supra. Here, Defendant was given a second opportunity to review the claim and took full advantage of it within the time specified in the law. One way or another, litigation was destined to ensue over the portion of the bill Defendant chose not to pay while it reviewed the claim for a second time as a consequence of having received Plaintiff’s demand letter.
14. Upon receiving Defendant’s response to the demand letter, Plaintiff relied on the explicit representations in the response, and the absence of any reference in Defendant’s response to any defect that may have existed in the demand. Plaintiff’s reliance was manifest by virtue of its filing and service of the Complaint in this action and incurring fees for such action. Plaintiff’s changed position in reliance on Defendant’s response to its demand means the principle of estoppel prevents Defendant from asserting that Plaintiff failed to comply the condition precedent contained in Fla. Stat. §627.736(10) (2008). Equitably, Defendant cannot now be heard to play “gotcha” with the defect in Plaintiff’s demand letter it is here asserting. VonDrasek, supra.
15. For all of the foregoing reasons, Plaintiff’s Supplemental Motion for Summary Judgment with respect to the issue under Fla. Stat. §627.736(10) (2008) is GRANTED and Defendant’s Motion for Summary Judgment concerning the same issue is DENIED.
16. There being no other issues in dispute between the Parties, Plaintiff FLORIDA EMERGENCY PHYSICIANS KANG AND ASSOCIATES, MD, PA as assignee of Ivorine Bramwell, recovers from GEICO INDEMNITY COMPANY, the sum of $16.80 plus 11 % per annum statutory interest from 3/3/2008 the time bill was received by Defendant, through the date of the final payment, for which sum let execution issue.
17. There being no other issues in dispute between the Parties, Plaintiff FLORIDA EMERGENCY PHYSICIANS KANG AND ASSOCIATES, MD, PA as assignee of Ivorine Bramwell, recovers from GEICO INDEMNITY COMPANY, taxable cost in the sum of $85.49.
The Court finds Plaintiff is entitled to reasonable Attorney’s Fees and Costs reserves jurisdiction to assess Attorney’s Fees and Costs to Plaintiff pursuant to Fla. Stat.§§ 57.041,627.736 and 627.428.
