17 Fla. L. Weekly Supp. 1033b
Online Reference: FLWSUPP 1710ROS2
Insurance — Personal injury protection — Demand letter that failed to account for deductible was deficient and failed to satisfy condition precedent to suit
TAMPA BAY IMAGING LLC., as assignee of Cathy Ross, Plaintiff, v. ESURANCE INSURANCE COMPANY, A foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 09-CC-08869, Division J. December 2, 2009. Gaston J. Fernandez, Judge. Counsel: Philip A. Friedman. Scott W. Dutton, Dutton Law Group, P.A., Tampa.
FINAL SUMMARY JUDGMENT REGARDING THE PLAINTIFF’S FAILURE TO SERVE ACOMPLAINT DEMAND LETTER
This matter came on to be heard on November 12, 2009 on Defendant, Esurance Insurance Company’s Motion for Summary Judgment on the issue of the Plaintiff, Tampa Bay Imaging’s, compliance with the requirements of Florida Statutes section 627.736(10), and after having reviewed the Defendant’s Motion and after having considered argument of counsel it is
ORDERED AND ADJUDGED THAT DEFENDANT, ESURANCE, MOTION FOR SUMMARY JUDGMENT IS GRANTED AS FOLLOWS:
1. This case arises as an action for declaratory relief under the Florida Motor Vehicle No-Fault law (also referred to as the personal injury protection or “PIP” statute), Fla. Stat. §627.736. The essence of the Plaintiff’s Amended Complaint for declaratory relief is the applicability of the Medicare’s Outpatient Prospective Payment System (“OPPS”) to the Plaintiff’s charges.
2. As a statutorily required condition precedent prior to the filing of an action for any claim under the Florida Motor Vehicle No-Fault law, Fla. Stat. §627.736, a claimant required to serve a complaint and accurate “Demand Letter”, pursuant to Fla. Stat. §627.736(10).
3. The Plaintiff’s assignor in this case, Cathy Ross, was issued a policy of automobile insurance by the Defendant, Esurance Insurance Company, which provides personal injury protection coverage, up to a maximum of $10,000.00, subject to a deductible in the amount of $500.00. On October 12, 2008 the insured was involved in a covered motor vehicle accident and was injured. She then sought an MRI of the cervical spine, CPT code 72141, with the Plaintiff on October 24, 2008.
4. Tampa Bay Imaging, LLC submitted a CMS 1500 Health Insurance Claims Form to the Defendant, Esurance Insurance Company, and charged the sum of $1,650.00 for CPT code 72141(“TC”) for date of service October 24, 2008.
5. On November 14, 2008, the Defendant responded to the above referenced claim by payment in the amount of $130.93 as set forth in the Explanations of Benefits/Review (EOB/EOR). The Plaintiff’s charge was allowed at $663.66, and the $500 deductible was applied to the Plaintiff’s charge.
6. On February 9, 2009, the Plaintiff, by and through its counsel, submitted a presuit demand letter in regard to the October 24, 2008 date of service. The presuit demand claimed that the exact amount due and owing was $1,519.07. The Defendant submits that the Plaintiff merely subtracted the amount paid by the Defendant ($130.93) from the amount billed by the Plaintiff ($1,650) to arrive at the sum requested of $1,519.07. However, the Defendant points out that under no circumstance would the Defendant, Esurance Insurance Company, owe the amount the Plaintiff, Tampa Bay Imaging, claims to be due and owing because of the $500 deductible.
7. The Plaintiff argued through counsel that they cannot submit a demand letter with the specifying the exact amount it claims to be due and owing because it does not know the exact amount in dispute because the Defendant has applied Medicare’s OPPS to the Plaintiff’s charges, even though on July 8, 2009 the Plaintiff filed a MORE DEFINITE STATEMENT which asserted that the amount in dispute in regard to this lawsuit comes to only $182.69 (about 1/10 of the specified to be due and owing in the demand letter). In response the Defendant further submits that the correct amount claimed to be due is easily derived from taking the “allowable amount” via the “applicable” Medicare B fee schedule less any applicable deductible and subtracting the payments previous received.
8. Fla. Stat. §627.736(10) makes it provides that claimants under the Florida Motor Vehicle No-Fault law, Fla. Stat. §627.736(10) prior to filing a No-Fault claim the claimant must submit “an itemized statement specifying each exact amount” it claims to be due and owing as follows:
DEMAND LETTER. —
(a) 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. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(10)”and shall state with specificity:
1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.
2. The claim number or policy number upon which such claim was originally submitted to the insurer.
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.
[emphasis provided]
9. The reasoning or rationale is that under Florida Motor Vehicle No Fault law in order to avoid litigation the insurer may within 30 days after receipt of the demand letter notice pay the overdue amount specified in the presuit notice together with applicable interest and a penalty of 10 percent of the overdue amount and postage. If the insurer pays this amount, then “no action may be brought against the insurer”.
10. Here, however, as the Defendant suggests the insurer, Esurance Insurance Company, would never owe the amount specified in the demand letter. Consequently, to allow the Plaintiff, Tampa Bay Imaging, LLC, to proceed on a defective or statutorily deficient presuit demand letter would essentially circumvent the legislative purpose of the presuit demand letter provisions of the Florida Motor Vehicle No-Fault law.
11. The requirements of Fla. Stat. §627.736(10) are unambiguous and adherence to the pre-suit notice requirement promotes the legislative goal of reducing unnecessary litigation, in part, to avoid the overburdening of the courts with actions that could be resolved before suit. Universal Health Care Center, Inc., (a/a/o Texsenia Cross) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 932b (Fla. 17th Circuit, Broward County, Oct 2004) (invalid presuit that did not take into consideration the deductible).
12. Furthermore, the requirements of Fla. Stat. §627.736(11) were designed, in part, to give the insurer an opportunity to know from the demand letter the exact amount of the overdue claim, which calculations Plaintiff was depending on in determining the exact amount due and what to pay in order to avoid litigation. Id. See also Urgent Care Center (a/a/o Esperanza Vargas) v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 673b (Fla. 11th Circuit, Miami-Dade County, April 15, 2005) (invalid presuit that did not take into consideration the deductible), Florida MRI, Inc. a/a/o Edouard Joseph v. Allstate Indemnity 2d DCA 2005) (the failure to adhere to the notice requirements in the Mechanic’s Lien Law entitled a surety to summary judgment).
WHEREFORE, IT IS HEREBY ADJUDGED that Defendant’s Motion for Summary Judgment be and same is GRANTED. Plaintiff Tampa Bay Imaging, LLC shall take nothing by this action and Defendant, Esurance Insurance Company of Florida, shall go hence without day and the Court will retain jurisdiction for the purposes of determining any motion by Defendant to tax fees and costs.
