18 Fla. L. Weekly Supp. 31a
Online Reference: FLWSUPP 1801PERE
Insurance — Personal injury protection — Demand letter — Insurer waived issue of defective demand letter sent by medical provider, which failed to include assignment or indicate whether payment should be made to provider or insured, by failing to raise issue until after suit was filed by insured — Provider’s demand letter satisfied intent of statute, which does not require that person that will ultimately file suit must be one to send demand letter
UNITED AUTOMOBILE INS. CO., Appellant, v. JUAN MANUEL PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 08-591 AP. L.C. Case No. 04-013861 CC 05. November8, 2010. An appeal from the County Court. Counsel: Thomas L. Hunker, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before COHEN, SARDUY, and SAMPEDRO-IGLESIA, JJ.)
(PER CURIAM.) In this Personal Injury Protection (PIP) case, the medical provider rather than the insured sent a pre-suit demand letter to the insurance company. However, the insured, not the medical provider, sued the insurance company for lack of payment. (There was no assignment of benefits to the provider). The insurance company moved for summary judgment because the insured did not send it a pre-suit demand letter. The trial court denied the motion for summary judgment. We affirm.
The insurance company’s sole argument that it is not responsible for the medical expenses at issue is that the insured did not send a pre-suit demand letter himself. However, because insurers who reject claims are required to notify claimants as to why such claims are being rejected, an insurer who fails to complain of a defective demand letter until after suit is filed waives the defense. See § 627.736(4)(b), Fla. Stat.; West’s Florida Practice Series Motor Vehicle No-Fault Law Personal Injury Protection § 10:12 (2009-2010 Ed.); Stand Up MRI of Boca Raton, P.A. v. United Auto. Ins. Co., 14 Fla. L. Weekly Supp. 886a (Fla. Broward Cty Ct. July 3, 2007).
The insurance company argues that the demand letter did not provide it with sufficient notice. The demand letter sent in the instant case was certainly not perfect. It was written on the letterhead of the medical provider and, while it does list the name of the patient, it does not state whether payment should be made to the provider or the patient. Whether the medical provider was demanding payment on its own behalf and simply forgot to attach an assignment, or whether it was demanding that the insured be paid was not clear from the letter. However, this was a situation that could have easily been remedied by the insurance company. All that it had to do was make an inquiry about who was requesting the payment or explain that the reason it was not making the payment was that the demand letter did not have an assignment attached or set forth who should be paid. Instead, the insurance company waited until after suit was filed to make known the reason it did not pay the bill, by including the existence of the defective demand letter in its amended affirmative defenses. By failing to raise that easily remedied issue until after suit was filed, the insurance company waived it.
In addition, Florida Statute § 627.736 (10) is very specific:
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.
All of the requirements of the statute were met by the provider. The demand letter sent by the provider put the insurance company on notice of the intent to file suit, the name of the insured, the claim number or policy number, the name of the medical provider, the date of treatment, the service rendered and the amount of the bill. Nowhere in the statute does it state that the person that will ultimately file suit must be the one to send the demand letter. The intent of the statute was satisfied herein and the insurance company, had it had any doubt as to who to pay could have and should have inquired as to this.
Accordingly, the order denying the insurance company’s motion for summary judgment, and the final judgment entered below are hereby AFFIRMED. (COHEN, SARDUY, and SAMPEDRO-IGLESIA JJ., concur.)
