17 Fla. L. Weekly Supp. 1151b
Online Reference: FLWSUPP 1712SCOOInsurance — Personal injury protection — Appeals — Certiorari — Request for certiorari relief from order denying motion for summary judgment based on insufficient demand letter is denied where insurer failed to demonstrate that order will cause irreparable harm that cannot be remedied on appeal, insurer was not denied due process, and trial court did not deviate from essential requirements of law
USAA CASUALTY INSURANCE COMPANY, Petitioner, vs. ROBBY G. HANSEN, D.C. as assignee of VALERIE SCOON, Respondent. Circuit Court, 2nd Judicial Circuit (Appellate) in and for Leon County. Case No. 09-AP-24. L.C. Case No. 2008-CC-4913. July 30, 2010. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland. Kimberly Driggers, Brooks Lebouf, et. al., Tallahassee, for Respondent. Harold R. Mardenborough, Carr Allison, P.A., Tallahassee, for Petitioner.
[Editor’s note: Order denying motion for summary judgment published at 17 Fla. L. Weekly Supp. 27a]
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(COOPER, Judge.) This case involves a claim for personal injury protection (“PIP”) benefits brought by a medical provider, Robby G. Hansen, D.C. (“Hansen”), against an insurance company, USAA Casualty Insurance Company (“USAA”), pursuant to Florida’s No-Fault Statute, Section 627.736. USAA’s insured, Ms. Scoon, was involved in a motor vehicle accident and assigned her PIP benefits to Hansen who sought to recover those benefits from USAA.
When USAA declined to pay the PIP benefits submitted for the medical treatment provided to the insured, Hansen served a pre-suit demand letter pursuant to Fla. Stat. Section 627.736(10). The demand letter requested USAA to pay Hansen’s charges of $1,719.20, plus interest of $187.04, as well as specific sums for postage and penalty. Hansen attached an itemized statement/documentation to the demand letter. USAA responded to the demand letter on October 23, 2008. In its response, USAA upheld its denial of Hansen’s bills based on its allegation that Hansen did not provide a valid Standard Disclosure and Acknowledgement Form. Hansen filed suit against USAA in Leon County Court to recover the PIP benefits.
USAA eventually moved for summary judgment regarding the sufficiency of Hansen’s presuit demand letter submitted under Fla. Stat. Section 627.736(10)(b)(3). USAA argued that because Hansen’s demand requested reimbursement for a $35.00 charge that Hansen later withdrew after the filing of the lawsuit and after discovery, the demand was insufficient. Hansen responded that its demand adequately complied with Section 627.736(10)(b)(3), Florida Statutes. This statute provides that prior to the filing of a lawsuit, a claimant must give the insurance company reasonable notice that its failure to pay the claimed sums, plus statutory penalties, interest and postage will result in a lawsuit. The notice required shall state that it is a “demand letter under s. 627.736(10)”and shall state with specificity:
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.
Hansen argued in the trial court that it provided USAA with all of the amounts due that it believed to be due at the time that it sent the demand letter and that this is all that the statute requires. Further, Hansen stated that even if the demand contained a mistake, it substantially complied with the pre-suit notice statute. The trial court denied USAA’s summary judgment motion.
The Petitioner now seeks to invoke this Court’s certiorari jurisdiction to review the trial court’s October 1, 2009 Order denying USAA’s summary judgment motion. In its Petition, USAA maintains that by denying summary judgment to USAA, the trial court departed from the essential requirements of law and that the trial court’s ruling may cause material injury to USAA. The Court has reviewed the Petitioner’s Petition for Writ of Certiorari, the Respondent’s Response to the Petition, the Supplemental Authority, and the documents provided to the Court in the Appendices. In addition, on June 13, 2010, the Court conducted oral argument which was attended by both parties.
The Court finds that the Petitioner has failed to demonstrate a sufficient basis for the extraordinary remedy of certiorari review. USAA has not demonstrated that the summary judgment order at issue will cause it irreparable harm of the kind which could not be remedied on appeal at the end of the case. Further, there has been no miscarriage of justice in the trial court as USAA was not denied due process and the trial court’s order did not deviate from the essential requirements of the law.
Accordingly, this Court declines to grant USAA’s request for certiorari relief.
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ORDER GRANTING RESPONDENT’S MOTION FOR APPELLATE ATTORNEY FEES
(COOPER, Judge.) THIS CAUSE having come on to be heard on Respondent’s Motion to Tax Appellate Attorney Fees, and the Court having reviewed the pleadings on file and being duly advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. The Court finds that the Respondent is the prevailing party in this appellate proceeding and the Respondent timely filed a Motion for Appellate Attorney Fees. The Respondent’s Motion for Appellate Attorney Fees is hereby GRANTED.
2. Pursuant to Fla. R. App. P. 9.400(b), the above styled cause is hereby remanded to the trial court for determination of reasonable appellate attorney’s fees, payable to the Respondent for time expended on this appeal.
