17 Fla. L. Weekly Supp. 234a
Online Reference: FLWSUPP 168DEVOR
Insurance — Personal injury protection — Demand letter — Presuit demand letter that requests amount in excess of amount insurer is required to pay under PIP statute and Medicare Part B schedules is invalid — Failure to serve additional explanation of benefits when insurer pays additional amount in response to demand letter does not create cause of action for breach of contract or specific performance
TAMPA BAY IMAGING, LLC as assignee of Rodney Devore, Plaintiff, v. ESURANCE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 08-26361, Division L. June 11, 2009. Joelle Ann Ober, Judge. Counsel: Scott Dutton. Philip Friedman.
FINAL SUMMARY JUDGMENT
On April 15, 2009 this matter came on to be heard on Defendant, ESURANCE INSURANCE COMPANY (hereinafter referred to as “ESURANCE”), motions to dismiss Plaintiff’s Complaint or, in the alternative, motion for more definite statement or, in the alternative, motion for summary judgment and after hearing reviewing the Defendant’s motions, the affidavits filed in support, and the applicable statutes and case law IT IS HEREBY ORDERED AND ADJUDGED:
According to the Plaintiff’s Complaint, this matter involves an action over unpaid and overdue personal injury protection (PIP) and medical payments coverage (MPC) benefits pursuant to a policy of insurance or contract. The Plaintiff alleges in paragraph 8 that on or about March 2, 2008, Rodney Devore was involved in a motor vehicle crash. In paragraph 9 Plaintiff alleges that Mr. Devore sustained personal injuries related to that accident. In paragraph 10 Plaintiff alleges that Mr. Devore underwent certain diagnostic tests or studies as provided by the Plaintiff for which medical bills were submitted for the services rendered. Although the Plaintiff failed to specify in their Complaint the charges in dispute, nevertheless the evidence and argument by the parties make it clear that the charges at issue are those set forth in the CMS 1500 Health Insurance Claim Form for date of service April 23, 2008. On that date TAMPA BAY IMAGING provided an MRI of Mr. Devore’s left shoulder pursuant to CPT Code 73221. Esurance responded to the claim posed by TAMPA BAY IMAGING as set forth in the Explanation of Benefits or Explanation of Review showing the date of service as April 23, 2008, the procedure code is 73221, the amount charged is $1,850.00 in the amount allowed as $785.14.
The Plaintiff then served a Presuit Demand on June 13, 2008, alleging that despite the payments made by ESURANCE to TAMPA BAY IMAGING, LLC, nevertheless, an amount remained due and owing by Esurance of $1,221.89. Esurance paid additional amount in response to the presuit. Notwithstanding the foregoing, the Plaintiff served a two count Complaint against ESURANCE claiming, amongst other things: breach of contract for failing to provide an Explanation of Benefits or legally sufficient Explanation of Benefits in response to presuit, and a separate count for failing to pay interest and benefits.
In response the Defendant served a motion suggesting the TBI failed to comply with the presuit section of the Florida No-Fault law. The Florida Presuit Provision, subsection 10 of Section 627.736, requires the Plaintiff to specify the amount they claim is due and owing. The statute further provides that if the insurer pays the amount “specified in the notice, together with interest, and a penalty of 10 percent of the overdue amount . . . no action may be brought against the insurer.” Stated more simply, to avoid suit in this case pursuant to the presuit provision of the No-Fault statute Esurance would be required to pay the full amount charged by TBI minus the amounts previously paid by Esurance.
Here, although the Plaintiff has stated or set forth an amount they claim is due and owing, nevertheless, the amount claimed in the presuit demand is in excess of any amounts which would be allowed under the Medicare Part B Physician’s Fee Schedule. Thus, the Plaintiff’s Presuit Demand, on its face, is insufficient for lack of specificity as to how much Esurance might actually owe under the Florida No-Fault law.
1. The section at issue, 627.736(10) states as follows:
(10) 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. A completed form satisfying the requirements of paragraph (5)(d) or the lost-wage statement previously submitted may be used as the itemized statement. 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.
This statute clearly sets forth a number of items, which need to be included in the notice prescribed by this section. In fact, this section uses the words“shall state with specificity” and“itemized statement specifying each exact amount.” Clearly, language such as this is unambiguous and places the burden upon the Claimant, in this case TBI, to leave no question as to what amounts are being sought by the notice. The court finds persuasive the holding in Fountain Imaging of West Palm Beach, LLC v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 614a (15th Judicial Circuit (Appellate-Civil) 2007) (insurer filed motion for summary judgment, claiming presuit demand letter defective because it failed to state “exact amount” owed; summary judgment granted as provider’s claim and demand letter sought amounts that, as matter of law, not reasonable). It is the opinion of this Court that the Plaintiff’s presuit demand that requests the Defendant to pay an amount in excess of the amount they are required to pay under the Florida No-Fault, and Medicare Part B fee schedules is invalid.
Plaintiff has claimed that even if their presuit is invalid, nevertheless they should be permitted to proceed on Count I of their Complaint. This Count alleges that ESURANCE either failed to provide an Explanation of Benefits or a legally sufficient Explanation of Benefits when it made additional payments in response the presuit demand. The record reflects that Esurance did serve an additional Explanation of Benefits when it paid additional sums in response to the Presuit Demand. Even if the Defendant had not provided an Explanation of Benefits, nevertheless, a failure to provide an Explanation of Benefits when an additional payment is made as part of the presuit process does not create a cause of action under Florida law over which the Plaintiff may seek a breach of contract or specific performance claim. This Court declines to accept the argument by the Plaintiff on this point.
WHEREFORE, for the foregoing reasons ESURANCE MOTION FOR SUMMARY JUDGMENT IS GRANTED. Judgment is hereby granted for Defendant, Esurance. TBI shall take nothing by this action and Esurance shall go forth hence without day. This court shall retain jurisdiction to determine Defendant, Esurance, entitlement to attorney’s fees, and costs.
