17 Fla. L. Weekly Supp. 463b
Online Reference: FLWSUPP 1706BOOK
Insurance — Personal injury protection — Demand letter is insufficient where letter does not specify exact services and amounts claimed to be due, and insurer’s explanation of review attached to letter states amount that conflicts with amount claimed in demand letter — Motion to dismiss is granted
JACKSONVILLE SPINE & INJURY CENTER, PL, A/A/O ERNESTINE BOOKER, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2009-CC-09507, Division I. February 16, 2010. Pauline Drake, Judge. Counsel: James B. Eubanks, for Defendant. David A. Spain, for Plaintiff.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE, came to be heard on January 11, 2010, on Defendant’s Motion to Dismiss based on the legal sufficiency of Plaintiff’s demand letter. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, David A. Spain, Esquire. Having considered the arguments of counsel, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. On May 12, 2009 Plaintiff submitted a Pre-Suit Demand letter (hereinafter “PSD”) to Defendant that purportedly complied with FLORIDA STATUTE § 627.736(10). The PSD was later attached to Plaintiff’s Complaint and made part of the Court record.
2. The purported PSD requested payment of $277.76 for dates of service 1/9/2009 through 1/12/2009 and attached an assignment of benefits and a copy of an Explanation of Review (hereinafter “EOR”), that was previously provided by the Defendant to the Plaintiff. The EOR showed all CPT codes that were submitted by the Plaintiff for billing. Some CPT codes were paid at reduced rates while some were denied in their entirety.
3. However, the EOR did not specify which CPT codes were at issue, nor did it specify the exact amounts being claimed due.
4. FLORIDA STATUTE § 627.736(10)(a), regarding Demand Letters, states, in pertinent part:
As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.
5. Additionally, FLORIDA STATUTE § 627.736(10)(b)(3) states, “The notice required shall state. . .with specificity”:
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. (emphasis added)
6. Defendant argued that Plaintiff’s “Pre-Suit Demand” letter did not state with specificity the exact amounts, dates of treatment and services claimed to be due, as required by FLORIDA STATUTE § 627.736(10). Instead, Plaintiff attached an EOR showing each and every service provided by the Plaintiff during the 1/8/2009 through 2/6/2009 dates of service, with an overall amount paid by State Farm.
7. As support of its position, Defendant cited several cases that held where the demand letter and attached itemization does not state with specificity the services rendered, exact amount owed, or date of relevant treatment then the Demand letter is not sufficient. See Linda Gordon v. Progressive American Insurance Co., 15 Fla. L. Weekly Supp. 61b (Duval Cty, 4th Cir., July 30, 2007) and see Aaron E. Thomas v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 664c (Duval Cty., 4th Cir., March 18, 2005); Mandarin Chiropractic Center, P.A. v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 564b (Duval Cty, 4th Cir. March 14, 2005). Further, other Courts around the state have also ruled on this issue and these are presented as persuasive authority in this Court. For instance, in Clay County, in Eric Walker v. Progressive Auto. Pro. Insurance Company, Case No. 2004-SC-934 C (Clay Cty., Judge Collins, August 19, 2005), it was held that when the Court is presented with a demand letter and attachments such that the Court cannot determine what the Plaintiff is claiming, it is not legally sufficient. See Walker v. Progressive Auto. Pro. Insurance Co. and see Ponte Vedra Chiropractic Medicine & P.T.,11 Fla. L. Weekly Supp. 829a (St. John’s Cty, 7th Cir., July 8, 2004); Universal Health Care Center, Inc. (as assignee of Texsenia Cross) v. Progressive Express Insurance Co., 11 Fla. L. Weekly Supp. 932b (Broward Cty., 17th Cir., July 14, 2004).
8. Plaintiff argued that the attached EOR provided sufficient information to allow the Defendant to calculate what was at issue in the suit. However, the PSD and the attached EOR stated different amounts. Specifically, the PSD stated $277.76 as the amount at issue, yet the EOR stated $465.41 as the amount at issue. Therefore, Defendant contended that there was no way it could make a determination as to the amount in which it was being sued.
9. In order to provide more specificity to the demand letter, Florida Statute § 627.736(10)(b)(3) allows for the Plaintiff to attach:
A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement.
10. The completed form referenced by paragraph (5)(d) is a CMS 1500 from or HCFA form. However, Plaintiff did not attach such documentation, instead an EOR was attached. This Court finds that if the Legislature had intended for the attachment of an EOR to comply with the statutory requirements, then such language would have been included in the statute.
11. The purpose of the requirements of Florida Statute § 627.736(10) is to put the insurer on notice of a claim and to have the opportunity to know, from the demand letter, the exact amount of the overdue claim, and know that if that amount is paid, the claim will be resolved without litigation. Physical Therapy Group, LLC v. Mercury Ins. Co. of Florida, 13 Fla. L. Weekly Supp. 889c (11th Judicial Cir., Miami-Dade Cty., June 2, 2006).
12. In this case, the Defendant was not provided the opportunity to resolve the claim without litigation due to the non-specific nature of Plaintiff’s PSD. Specifically, (1) the discrepancy between the amount indicated in the PSD and the EOR, (2) the failure to attach a form in compliance with FLORIDA STATUTE § 627.736(5)(d) and (3) the failure to specify the exact services and amount at issue made it impossible for the Defendant to realistically evaluate the demand and determine if payment would be appropriate.
13. Thus, the Plaintiff has failed to meet the conditions precedent required by FLORIDA STATUTE §627.736 (10) and cannot, therefore, bring this action.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss is hereby Granted.
