18 Fla. L. Weekly Supp. 82b.

Online Reference: FLWSUPP 1801QUIN

Insurance — Personal injury protection — Demand letter — Where insurer does not dispute actually receiving demand letter, only whether it was sent to incorrect designee, medical provider substantially complied with demand letter requirement — Demand letter is not defective for including demand for reimbursement for one date of service for which insurer claims to have previously issued payment

MAURICIO CHIROPRACTIC GROUP, INC., as assignee of RAFAEL QUIÑONES, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 07-SC-9113. September 1, 2010. Honorable Antoinette Plogstedt, Judge. Counsel: Justin Howard Presser, Weiss Legal Group, P.A., Maitland, for Plaintiff. Wendy L. Pepper, Rissman, Barrett, et. al., Tampa, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT

This action for PIP benefits came before the Court on July 30, 2010 on the Defendant’s Motion for Summary Judgment. The Court, having considered the motion, the record, and the arguments of counsel, hereby

ORDERS AND ADJUDGES as follows:

STATEMENT OF FACTS

1. The facts relevant to the Defendant’s Motion for Summary Judgment are not in dispute and are supported by the record before this Court.

2. On or about June 30, 2006, Rafael Quinones, was involved in a motor vehicle accident (“the Accident”) in which he sustained personal injuries.

3. As a direct and proximate result of the injuries Rafael Quinones sustained in the Accident, Mr. Quinones sought and was provided treatment by Mauricio Chiropractic Group, Inc.

4. Defendant issued a policy of insurance to Rafael Quinones which provided Personal Injury Protection benefits as required by law to comply with Florida Statutes §627.730-§627.7405 (“the Policy”).

5. The Policy was in full force and effect on the date of the Accident and provided personal injury protection coverage to Rafael Quinones for bodily injuries he sustained in the Accident.

6. Rafael Quinones executed an actual or de-facto assignment of benefits assigning his rights, title, and interest to his claim under the Policy to Mauricio Chiropractic Group, Inc., for health care services related to the Accident.

7. USAA failed to issue any payment for charges for treatment incurred by Rafael Quinones for health care services provided by the Plaintiff on September 25, 2006 and February 1, 2007.

8. On June 11, 2007, the Plaintiff submitted a Demand Letter, pursuant to Florida Statute §627.736(11) for the above-referenced dates of service and attached the CMS-1500 forms for each date of service. The Plaintiff also included charges incurred for treatment rendered to Mr. Quinones on November 27, 2006 in the June 11, 2007 Demand Letter.

9. The June 11, 2007 Demand Letter was directed to John Elifson of USAA.

10. Prior to the submission of the Demand Letter, the Defendant issued payment for the November 27, 2006 date of service pursuant to the contract of insurance.

11. USAA received the Demand Letter and was able to conduct an investigation into every date of service in which demand was made.

12. USAA ultimately failed to issue any payment in response to the demand letter.

13. The instant action was filed by the Plaintiff on or around July 27, 2007.

14. On January 4, 2010, the Defendant filed its Motion for Final Summary Judgment.

15. The Defendant’s Motion for Final Summary Judgment addresses two issues: 1) improper designation of PIP demand responder; and 2) inclusion of a date of service for which payment had already been issued.I. Improper Designation of Corporate Representative 15. USAA argues that Florida Statute §627.736(11) requires strict compliance and moves for summary judgment on the basis that the DemandLetter submitted by the Plaintiff was not directed to the individual designated by USAA for the receipt of PIP Demand Letters and thus does not strictly comply with the demand letter statute.

16. While there remains an issue of fact as to whether the Demand Letter was addressed to the proper PIP designate, there is no genuine issue of material fact that USAA ultimately received the Plaintiff’s Demand Letter. As such, this argument fails as a matter of law.

17. Florida courts have long recognized that the statutory limitations and requirements surrounding traditional insurance contracts may be incorporated into an insurance contract for purposes of determining the parties’ contractual rights. Lutz v. Protective Life Ins. Co., 951 So. 2d 884 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D160a] (citing Citizens’ Ins. Co. v. Barnes, 98 Fla. 933, 124 So. 722, 723 (Fla. 1929) (finding an ordinance is “part of the contract of insurance” because there was no reason not to apply the “general doctrine that, where parties contract upon a subject which is surrounded by statutory limitations and requirements, they are presumed to have entered into their engagements with reference to such statute, and the same enters into and becomes a part of the contract”)); see also Weldon v. All Am. Life Ins. Co., 605 So. 2d 911, 914 (Fla. 2d DCA 1992) (applying the general principle to determine the extent to which a chiropractor’s services were covered under an insurance policy); Foundation Health v. Westside EKG Assocs., 944 So. 2d 188 (Fla. 2006) [31 Fla. L. Weekly S669b] (stating “[w]hen parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes a part of the contract.”).

18. Florida Statute § 627.736(11) is one such statute which requires, as a condition precedent to filing a lawsuit for PIP benefits, that a claimant must provide an insurer with written notice of an intent to initiate litigation. See Fla. Stat. §627.736(11)(2007).

19. The purpose of a PIP demand letter is to put the insurer on notice of intent to initiate litigation on a PIP claim. Progressive Express Ins. Co. v. Polynice, 12 Fla. L. Weekly Supp. 1015b (Fla. 9th Cir. Ct. July 18, 2005).

20. In this aspect the statute requiring a demand letter prior to filing an action for PIP benefits is similar to Florida Statutes, §768.57(2), which requires, as a condition precedent to filing a medical malpractice action, a notice of intent to initiate litigation.

21. In the instant matter, USAA does not dispute actually receiving the demand letter, only that it was sent to the incorrect corporate designee.

22. As the Defendant actually received the demand letter, the Plaintiff substantially complied with the demand letter requirements for service as the purpose of the demand letter statute was satisfied. See Patry v. Capps, 633 So.2d 9 (Fla. 1994)(In deciding whether strict compliance with the mode of service is required, a court must look to the purpose of the legislation).

II. Plaintiff’s Demand for Amounts in Excess ofActual Amounts Owed

23. The Defendant next claims that the demand letter sent by the Plaintiff and received and reviewed by the Defendant is defective in that it requested reimbursement for three dates of service, one of which the Defendant claims to have previously issued payment.

24. USAA argues that any accounting error in including a previously paid date of service effectively renders a demand letter defective and otherwise non-compliant with Fla. Stat. § 627.736(11)(2007).

25. The Defendant misinterprets Florida Statute §627.736(11)(2007).

26. Florida Statute §627.736(11) states in relevant part; as follows:

(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. . . .

(b) The notice required shall state that it is a “demand letter under s. 627.736(11) and shall state with specificity:

3. To the extent applicable. . . 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).

27. The statute does not require the Plaintiff, or any claimant, to provide an insurer, including the Defendant, with the exact amount of PIP benefits which are ultimately determined to be due in a specific claim and/or case nor does the statute state that any alleged accounting oversight nullifies an otherwise compliant demand.

28. Such an interpretation would frustrate the legislative intent of the PIP statute; especially in this case where the Defendant was not prejudiced and was able to investigate the claim and determine which amounts were paid and which amounts were not.

29. The statute merely requests a claimant to itemize each amount it claims to be due. See Florida Statutes, §627.736(11)(b)(3).

30. In the instant case, the Plaintiff attached to its demand letter the CMS-1500 forms for each date of service of which the Plaintiff was claiming amounts owed. The CMS-1500 forms for each date of service contain information regarding the specific procedure and amounts charged for each procedure. This is sufficient itemization where the Plaintiff claims the Defendant failed to issue any amount, and complies with the requirements of §627.736(11).

31. This Court is aware of the Order entered by Judge Martinez in Tamayo-Rodriguez v. Progressive American Insurance Company, 15 Fla. L. Weekly Supp. 1189a (Fla. County Court, Orange County, October 23, 2008) but respectfully disagrees with that Order.

32. This Court further finds that, at a minimum, the Plaintiff substantially complied with the Demand Letter requirements.

33. USAA admitted to receiving the demand letter and investigating the claim wherein it was determined that payment on one date demanded was previously issued, but not as to the other two dates of service.

34. As such, USAA was on notice as to the amounts it was required to pay to avoid litigation which is the purpose behind Florida Statute §627.736(11).

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby DENIED.