19 Fla. L. Weekly Supp. 207a
Online Reference: FLWSUPP 1903AZADInsurance — Personal injury protection — Demand letter — Insurer waived right to take issue with lack of specificity in demand letter by failing to advise medical provider of alleged defects in response to demand letter
DEJESUS CHIROPRACTIC CENTER, P.A. A/A/O JAVAD AZADI, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-02847-SP-21. September 12, 2011. Honorable Ana Maria Pando, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. Leo Sutkin, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYINGDEFENDANT’S CROSS-MOTION FOR SUMMARYJUDGMENT AS TO COMPLIANCE WITHF.S. 627.736 (10) (DEMAND LETTER)
THIS CAUSE came before the Court for hearing on September 1, 2011 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on compliance with Florida Statutes § 627.736 (10). The Parties agree that there are no material disputed issues of fact and this matter may be disposed of as a matter of law. The Court, having reviewed the motions and entire Court file; relevant legal authorities; heard argument, and been sufficiently advised in the premises, finds as follows:Background
This is a case for unpaid P.I.P. benefits. Javad Azadi received medical services from Plaintiff for injuries sustained in an automobile accident on August 9, 2008. Prior to filing a lawsuit seeking the unpaid PIP benefits, Plaintiff sent Defendant a Pre-suit Demand Letter pursuant to § 627.736(10) on August 6, 2009 and attached the CMS-1500 form for said date of service. The Defendant responded to the Plaintiff’s Pre-suit Demand Letter on September 3, 2009 acknowledging receipt of the Plaintiff’s letter and denying any additional payments were owed.”1
The instant action was filed on or about June 30, 2010. In its Answer, Defendant raised the affirmative defense of failure to comply with § 627.736(10) and filed a summary judgment as to said issue, as did the Plaintiff file a summary judgment on the same issue. The Defendant’s main contention at this hearing is that the Plaintiff’s Demand Letter failed to state the “exact amount owed” and that the Demand Letter creates “confusion” as to what the Plaintiff is seeking as payment. The Plaintiff filed a Reply advising the Defendant of the issue of “waiver” of its affirmative defense for failure to list the issue in its Demand Letter response.Legal Conclusions:
1. In this case, the Court finds that the Defendant waived its right to take issue with any lack of “specificity” with the Plaintiff’s Pre-suit Demand Letter as the Defendant failed to place the Plaintiff on notice as to any issues discussed in its Motion for Summary Judgment (and argument at this hearing) when it sent its Demand Letter response. If the Defendant took issue with the calculation methods employed by the Plaintiff in stating the amount at issue, said reasons were not made known until the filing of the Defendant’s Answer in this case. If the Defendant was unsure of the calculations made by the Plaintiff (or of any other confusion it had in said Demand Letter), it could have advised the Plaintiff in its Demand Letter response, thereby giving the Plaintiff an opportunity to correct same at that time. This Court finds that such a solution is in accord with the overall goal of curtailing litigation and promoting resolution early in the claims process.
2. In United Automobile Ins. Co. v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (Fla. 11th Judicial Circuit (Appellate), Miami-Dade County, November 8, 2010), the Eleventh Circuit ruled that the insurer waived the issue of defective demand letter by failing to raise the issue until after suit was filed by the insured. In that case, the demand letter had numerous deficiencies, however, the insurer did not advise the medical provider that it took issue with same and did not raise the issue of defective demand letter until after suit was filed. In our case, the insurer did not place the provider on notice of any of the defects it raises in its motion for summary judgment and this Court finds that they are now waived.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Cross-Motion for Summary Judgment is DENIED.
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1The Defendant’s Demand Letter response was reviewed by this Court without objection.
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