18 Fla. L. Weekly Supp. 548a
Online Reference: FLWSUPP 1806PITC
Insurance — Personal injury protection — Demand letter — Sufficiency — Where claim forms attached to demand letter in lieu of itemized statement total to amount different from amount demanded in letter, demand letter is not sufficient to satisfy condition precedent — Insurer’s motion for final summary judgment is granted
NORTH FLORIDA HEALTH CARE, INC., (As assignee of SPENCER PITCHER), v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2009-CC-006121, Division O. July 15, 2011. Honorable Ronald Higbee, Judge. Counsel: David A. Spain, for Plaintiff. James B. Eubanks, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENTRE: IMPROPER DEMAND LETTER
THIS CAUSE, came to be heard on May 18, 2010, on Defendant’s Motion for Final Summary Judgment based on the legal sufficiency of Plaintiff’s demand letter. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, David A. Spain, Esquire. Having considered the arguments of counsel, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. On or about May 8, 2009, Plaintiff filed this lawsuit alleging “Defendant failed to make proper payment of said PIP benefits within thirty (30) days as required by Sec. 627.736 (4)(b), Fla. Stat.” See Complaint, paragraph 10.
2. On February 18, 2009, Plaintiff sent Defendant a Pre-suit Demand Letter (“PSD”) purportedly in compliance with FLORIDA STATUTE § 627.736 (10). See Plaintiff’s Complaint, paragraphs 8 and 9.
3. The PSD demanded payment for No-Fault benefits rendered to the insured from the Plaintiff for dates of service 3/12/08 through 5/1/08, in the amount of $2,586.37 plus interest. A true and accurate copy of Plaintiff’s PSD is attached to Plaintiff’s Complaint as Exhibit “B.”
4. FLORIDA STATUTE § 627.736 (10), regarding Demand Letters, states, in pertinent part:
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.
5. Additionally, FLORIDA STATUTE § 627.736 (10)(b)(3) states, “The notice required shall state. . .with specificity”:
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 added)
6. The Defendant argued that Plaintiff has failed to comply with the above statutorily required condition precedent as to provide proper notice to the Defendant of an intent to initiate litigation, by not including all of the above statutorily promulgated requirements. Specifically, Defendant argued that Plaintiff’s PSD failed to provide an itemized statement specifying: the exact amount at issue.
7. Instead, Plaintiff attached several CMS 1500 Forms to the PSD to establish the amount at issue. The attached CMS 1500 Forms total $5,942.00 for the services provided, yet the PSD demands $2,586.37.
8. Therefore, Defendant asserted that it was uncertain which amount Plaintiff was claiming was at issue.
9. Courts across the state, have properly granted Summary Judgment for Defendants due to Plaintiff’s legally insufficient attachments to the demand letter. Indian Rocks Chiropractic, Inc. on behalf of Florence Reichert v. State Farm Fire & Casualty, 13 Fla. L. W. S. 608b (6th Judicial Cir., Pinellas Cty., March 2, 2006); Aaron E. Thomas v. Progressive Express Insurance Company, 12 Fla. L. W. S. 664c (4th Judicial Cir., Duval Cty., March 18, 2005); Ponte Vedra Chiropractic Medicine & P.T. (As assignee of Aliya Ryabo Va) v. Progressive American Ins. Co., 11 Fla. L. W. S. 829a (7th Judicial Cir., St. Johns County, July 8, 2004); Sun Coast Health Care Center #1, Inc. (Pamela Segal) v. Progressive Express Insurance Company, 12 Fla. L. W. S. 803c (17th Judicial Cir., Broward County, May 3, 2005), Linda Gordon v. Progressive American Insurance, 15 Fla L. Weekly Supp. 61b (Fla. 4th Judicial Circuit, Duval Cty., August 14, 2007) and Jacksonville Spine & Injury Center (as assignee of Ernestine Booker) v. State Farm Mutual Automobile Insurance Company (Fla. 4th Judicial Circuit, Duval Cty. CASE NO.: 2009-CC-09507) [17 Fla. L. Weekly Supp. 463b] (decided on January 11, 2010, order not yet signed).
10. The purpose of the requirements of Florida Statute § 627.736(10) is to put the insurer on notice of a claim and to have the opportunity to know, from the demand letter, the exact amount of the overdue claim, and know that if that amount is paid, the claim will be resolved without litigation. Physical Therapy Group, LLC v. Mercury Ins. Co. of Florida,13 FLW Supp. 889c (11th Judicial Cir., Miami-Dade Cty., June 2, 2006). In this case, Defendant was not provided the opportunity to resolve the claim without litigation due to the Plaintiff’s non-specific PSD.
11. This Court finds that there are no genuine triable issues of fact, the Plaintiff did not meet the necessary condition precedent at the time this suit was filed. Therefore, Defendant’s Motion for Summary Judgment is hereby Granted, as a matter of law.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby Granted.
