19 Fla. L. Weekly Supp. 581a

Online Reference: FLWSUPP 1907JOHNInsurance — Personal injury protection — Standing — Assignment — Where assignment fails to name medical provider as assignee, ambiguity in assignment precludes summary judgment on standing issue — Demand letter — Where statute of limitations has not run out and insurer does not allege that there is insufficient time remaining in limitations period to cure any defect in demand letter, proper remedy for defective demand letter would be dismissal without prejudice, and summary judgment on issue is not warranted — Motion for summary judgment is, therefore, treated as motion to dismiss — Demand letter is not defective for failing to attach copy of independent medical examination report on which insurer relied to withdraw future benefits and itemized statement of future treatment claimed to be reasonable and necessary where letter demanded payment for services already rendered — Demand letter is not defective for demanding more than amount claimed in complaint

CHIROPRACTIC CENTER OF LAKELAND a/a/o BRENDA JOHNSON, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. County Court, 10th Judicial Circuit in and for Polk County, Small Claims Division. Case No. 2011-SC-001599. March 9, 2012. J. Kevin Abdoney, Judge. Counsel: Philip A. Friedman, FL Legal Group, Tampa, for Plaintiff. Amy D. Prevatt, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Tampa, for Defendant.

ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on March 6, 2012, for hearing upon the Defendant’s Motion for Final Summary Judgment (hereinafter “Motion”). Present were counsel for the Plaintiff, Philip A. Friedman, Esquire, and counsel for the Defendant, Amy D. Prevatt, Esquire. The Court has considered the Motion, the pleadings and summary judgment evidence on file, the arguments of counsel and applicable law. After careful consideration of the foregoing, the Court enters its Order herein:

The Defendant moves for summary judgment on two grounds: 1) that the Plaintiff lacks standing to sue on the instant action because there is no evidence of an assignment of benefits executed in favor of the Plaintiff by the insured; and 2) that the Plaintiff failed to comply with the pre-suit requirements of section 627.736(10)(b)(3), Florida Statutes (2008). The Court addresses each argument in turn.

I. ASSIGNMENT OF BENEFITS

In its Motion the Defendant alleges that the Plaintiff lacks standing in this case because the Plaintiff never received a valid assignment of benefits from the insured. In support of this assertion, the Defendant attached to its Motion as Exhibit “A” an affidavit of the Defendant’s claims representative attesting to the fact that “State Farm never received a valid Assignment of Benefits from the Plaintiff, CHIROPRACTIC CENTER OF LAKELAND, at any time that was executed by BRENDA JOHNSON in favor of the Plaintiff.” Also attached to the Defendant’s Motion as Exhibit “D” is a copy of a document entitled “ASSIGNMENT OF BENEFITS LIENS AND DIRECT PAYMENT AUTHORIZATION” (hereinafter “Assignment”). Said document appears to be signed on February 21, 2011 by Brenda L. Johnson as “patient” and Kandy Johnson as “witness.” Further, the Defendant’s claims representative attests to the existence of said document in the claims file.

The Plaintiff relies upon Gables Insur. Recovery, Inc., Ovalle v. Seminole Casualty Insurance Company, 10 So. 3d 1106 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b], the relevant facts of which are identical to those in the instant case. In Gables, a PIP case, the county court granted the Defendant’s motion for summary judgment on the ground that the assignment of benefits executed by the insured failed to specifically name the medical provider as assignee. 10 So. 3d at 1107, On certiorari review of the circuit court’s appellate affirmance, the Third District reversed, observing “. . . that the trial court’s conclusion that the initial assignment is ambiguous acknowledges the existence of a fact issue which precludes summary judgment.” Id. The Court concluded that granting summary judgment in favor of an insurer upon an ambiguous assignment constitutes a departure from the essential requirements of the law resulting in a miscarriage of justice. Id. at 1108.

In support of its position that the Plaintiff lacked standing based upon the defective Assignment in this case, the Defendant directs the Court to Progressive Express Insur. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b], and Hartford Insur. Co. of the Southeast v. St. Mary’s Hosp., Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a]. Both cases are readily distinguishable from Gables in that, in those cases, there was no evidence of an assignment whatsoever — not even an ambiguous assignment — prior to the institution of the PIP lawsuit. See McGrath, 913 So. 2d at 1284; St. Mary’s Hosp., 771 So. 2d at 1212.

The Court is unable to distinguish the facts in Gables from those in the present case. Consequently, the Court concludes that a genuine issue of material fact exists with regard to the validity of the assignment and, therefore, summary judgment is not warranted on this ground.¹

II. PRE-SUIT REQUIREMENTS

The Plaintiff requests summary judgment on the ground that the Plaintiff failed to comply with section 627.736(10)(b)(3), Florida Statutes (2008), in that the demand letter provided to the Defendant 1) did not include a copy of the IME report upon which the Defendant relied to withdraw future benefits; 2) did not include an itemized statement specifying the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary; and 3) sought payment in excess of the amount claimed in the Plaintiff’s complaint.

At the outset, it is important to note that the Defendant has not alleged that the relevant statute of limitations has run. Nor has it alleged that there is insufficient time remaining under the limitations period in which the Plaintiff could cure any pre-suit deficiency. Assuming, without finding, that the demand letter in the instant case is defective, the proper remedy, absent any issue regarding the statute of limitations, is dismissal without prejudice. Villa Maria Nursing and Rehab. Ctr., Inc. v. South Broward Hosp. Dist., 8 So. 3d 1167, 1171-72 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D723a] (citing Halpin v. Short, 490 So. 2d 1271 (Fla. 2d DCA 1986)). There being no evidence before the Court that the applicable limitations period has run or that it will run before the Plaintiff could correct any alleged pre-suit defect, summary judgment is not warranted. Therefore, the Court elects to treat the Defendant’s Motion for Summary Judgment as it relates to the alleged defective demand letter as a Motion to Dismiss.

Turning to the underlying issue of whether the demand letter complies with section 627.736(10(b)(3), the Court concludes that the Defendant’s position is without merit. With regard to its claim that the demand letter fails to include a copy of the IME and a statement of the type, frequency, and duration of future treatment, the Defendant overlooks the fact that the demand was based upon services already rendered. Such requirements only apply to “future treatment not yet rendered.” § 627.736(10)(b)(3), Fla. Stat. (2009). Further, the demand letter states an exact amount due — $1,070.00 — as required by section 627.736(10)(b)(3). The Court fails to discern the legal significance of the fact that the Plaintiff seeks less in this lawsuit than was claimed in the demand letter.

Based upon the foregoing, the Court finds that the Plaintiff’s demand letter in this case complies with the material requirements of Florida law and that dismissal is not warranted.

Whereupon it is:

ORDERED AND ADJUDGED

1. The Defendant’s Motion for Final Summary Judgment due to an allegedly invalid assignment is DENIED.

2. The Defendant’s Motion for Final Summary Judgment [Motion to Dismiss] due to an allegedly defective pre-suit demand letter is DENIED.

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¹In reaching this conclusion, the Court does not consider the Plaintiff’s late-filed affidavit of Kandy Johnson as it is not necessary to do so. The Court declines to rule upon the Defendant’s objection to the Court’s consideration of said affidavit as the objection is rendered moot by the Court’s ruling.

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