19 Fla. L. Weekly Supp. 289a
Online Reference: FLWSUPP 1904CHAMInsurance — Personal injury protection — Demand letter — Attachment of CMS-1500 claim forms to demand letter satisfied statutory requirement for itemized statement — Statute does not require that demand letter state exact amount owed or reflect prior payments made by insurer
MARK S. SCHERER, D.C., P.A. A/A/O NATASHA CHAMPAGNE, Plaintiff, v. MGA INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502010CC001906-XXXX-MB-RF. November 18, 2011. Honorable Deborah Moses-Stephens, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. Erich Von Unruh, Kirwan, Spellacy & Danner, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT AS TOCOMPLIANCE WITH F.S. 627.736 (10) (DEMAND LETTER)
THIS CAUSE came before the Court for hearing on November 15, 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
Prior to filing a lawsuit seeking unpaid personal injury protection benefits (“PIP”), Plaintiff sent Defendant a Pre-suit Demand Letter pursuant to § 627.736(10) and attached the CMS-1500 forms for all dates of service at issue. The Plaintiff also noted the total amount of charges incurred for treatment rendered to the claimant. The Demand Letter did not reference prior payments made by the Defendant, nor did it attempt to compute the exact amount owed by the Defendant.Legal Conclusions:Compliance with § 627.736(10)
1. A review of the applicable statute, § 627.736(10)(a), Florida Statutes, (2008), states in relevant part:
“(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 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 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) . . . may be used to as the itemized statement.” (emphasis added)
2. In this case, there is no dispute that the Plaintiff attached the CMS-1500 HCFA forms to the Demand Letter. The Defendant’s position is that the Plaintiff has not complied with the provisions of F.S. § 627.736 (10) since it did not state that “exact amount owed”, nor did the Plaintiff account for any prior payments made by the Defendant in its Pre-suit Demand Letter. The Court notes that there is no language contained therein that requires the medical provider to compute the exact amount owed or that a Demand Letter reflect prior payments made by the insurer.
3. A plain reading of the statute only says that a pre-suit demand must specify “[t]o the extent applicable . . . an itemized statement specifying each exact amount . . .” The Court is not free to edit statutes or add requirements that the legislature did not include. Meyer v. Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D990c]. The Defendant fails to convince this Court of the consequence of failing to list the exact amount owed. In this case, Plaintiff’s Demand Letter does, in fact, meet all of the statutory requirements under §627.736(10), in that Plaintiff attached an itemized statement which sets forth the name of the medical provider who rendered treatment and services, and each exact amount, date of treatment, service or accommodation, and the type of benefit claimed to be due. In short, the Plaintiff provided the Defendant with all the information necessary to properly process the claim in compliance with Florida Statute § 627.736 (10).
4. This Court finds that attaching the CMS-1500 forms to the Plaintiff’s Demand Letter constitutes the “itemized statement” that is needed for the Plaintiff to properly put the Defendant on notice as to the bills at issue. In MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire & Casualty Company, 61 So.3d 462 (Fla. 4th DCA, June 24, 2011) [36 Fla. L. Weekly D960b], the Fourth District held that attaching a HCFA claim form is acceptable as an “itemized statement” and satisfies the legislative intent of F.S. §627.736(10), as it places all parties as to the amount at issue. The provider is to attach all the bills previously submitted that are at issue to its Demand Letter and the insurer is given a 30-day window to review the specific charges at issue for a second time and determine whether any additional PIP benefits are due, or if it chooses to stand on its original decision as listed in its Explanation of Benefits. Until that time period runs, litigation cannot commence. Therefore, as to satisfying the requirements of F.S. §627.736(10); this Court finds that the Plaintiff’s actions in this case are in accord with Ebba Register and in accord with F.S. §627.736(10).
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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