18 Fla. L. Weekly Supp. 484a
Online Reference: FLWSUPP 1805GHOL Insurance — Personal injury protection — Demand letter is insufficient to satisfy condition precedent where it cannot be determined from demand letter and its attachments where amounts set forth in letter come from, what charges are unpaid, and what charges medical provider claims are owed — Affirmative defense of failure to perform condition precedent was not waived by passage of time where defense was properly pleaded, noticed and heard
FIRST HEALTH CHIROPRACTIC, as assignee of SHEILA GHOLAMI, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-SC-2218. October 25, 2010. Honorable Antoinette D. Plogstedt, Judge.
FINAL SUMMARY JUDGMENT
THIS CAUSE came on before the Court on the Defendant’s Motion for Final Summary Judgment, and, having heard argument of counsel and being otherwise fully advised in the premises, the Court hereby finds as follows:
1. On or about March 15, 2007, Plaintiff filed this action against State Farm seeking to recover personal injury protection benefits for medical treatment provided by the Plaintiff to assignor Sheila Gholami for dates of service December 12 and 13, 2005.
2. As a condition precedent to instituting this lawsuit, the Plaintiff was required to submit a presuit demand letter in accordance with section 627.736(11), Florida Statutes (2005). Specifically, Section 627.736(11) requires that the Plaintiff provide Defendant with “an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.” Section 627.736(11)(b)3, Fla. Stat. In lieu of an itemized statement, a Plaintiff may attach a completed form satisfying the requirements of paragraph (5)(d). Id. However, “[i]f Health Insurance Claim Forms are to be used as an itemized statement, and all charges contained in the Health Insurance Claim forms have not been denied or reduced, the Plaintiff must mark and tabulate the CPT codes and charges contained in the Health Insurance Claim forms accordingly so as to specify each exact amount at issue for each individual service charge at issue, along with an accurate account of total amount that is being claimed as due.” Chiro-Medical Rehabilitation of Orlando, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 162b (Fla. 17th Jud. Cir. 2004). And see Physical Therapy Group, LLC v. Mercury Ins. Co. of Fla., 13 Fla. L. Weekly Supp. 889c (Fla. 11th Jud. Cir. 2006); Florida Emergency Physicians Kang & Assoc., MD., P.A., v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 391a (Fla. 18th Jud. Cir. 2005).
3. The demand letter requirements of section 627.736(11) “are intended to be, and must be, strictly construed to effectuate their purpose. The bottom line of the requirement is to enable the person designated by the insurance company to look at, and only at, the four corners of one letter (and its statutorily authorized attachments), in order to fully understand its potential liability). Chambers Medical Group, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 556a (Fla. 13th Jud. Cir. 2005).
4. There are no material issues of fact in dispute. The Court has viewed all facts and inferences therefrom in the light most favorable to Plaintiff.
5. On March 3, 2006, Plaintiff submitted to the Defendant its “Demand for Payment Pursuant to F.S. 627.736(11) Fla. Statute (2003) — Reduced/Denied Bills.” Attached to the Demand For Payment were the completed Health Insurance Claim Forms for the dates of service at issue.
6. The Court has carefully considered the March 3, 2006, demand letter and all attachments thereto and has reviewed all documents submitted to the Court to confirm whether the Plaintiff performed or substantially performed all conditions precedent. The Court finds that Plaintiff failed to perform all conditions precedent to filing this action because Plaintiff’s Demand for Payment did not comply with Section 627.736(11), Florida Statutes (2005).
7. The Court finds that the information contained within the Plaintiff’s March 3, 2006 demand letter and its attachments is ambiguous and confusing. The Court cannot determine, by looking at the demand letter and the attachments thereto, where the amount set forth in the demand letter comes from, what charges are unpaid, or what charges Plaintiff claims are owed. The Court had to rely upon documents outside the four corners of the demand letter and its attachments in order to understand the figures in the demand.
8. The Defendant did not waive the defense of failure to perform a condition precedent. The Defendant denied the general allegation in Plaintiff’s Complaint that Plaintiff had performed all conditions precedent to bringing this action and, further, sufficiently alleged Plaintiff’s failure to comply with the provisions of Fla. Stat § 627.736(11) in its affirmative defenses. Plaintiff did not reply to the Defendant’s affirmative defenses and did not move to strike or move for a more definite statement. The defense was properly pleaded, noticed, and heard and was not waived through passage of time.
Based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED AND ADJUDGED:
1. That the Defendant’s Motion for Final Summary Judgment is GRANTED;
2. Judgment is hereby entered in favor of the Defendant State Farm Mutual Automobile Insurance Company. Plaintiff shall take nothing by this action, and State Farm Automobile Insurance Company shall go hence without day.
2. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm Mutual Automobile Insurance Company and against Plaintiff, including jurisdiction to determine the issue of entitlement and the amount of such attorneys’ fees.
