19 Fla. L. Weekly Supp. 659a
Online Reference: FLWSUPP 1908QUINInsurance — Personal injury protection — Demand letter — Insurer waived issue of defective demand letter that failed to include assignment by failing to raise issue in response to letter — Further, demand letter satisfied intent of PIP statute where deficiency did not affect processing of demand letter by insurer and served purpose of putting insurer on notice of intent to initiate litigation
MEDICAL REHAB AND WELLNESS (a/a/o Gilletin Quinn) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-03197 COCE (54). March 23, 2011. Honorable Lisa G. Trachman, Judge. Counsel: Emilio Roland Stillo, Weston, for Plaintiff. Justin Cincola, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARYJUDGEMENT AS TO DEMAND LETTER
THIS CAUSE came before the Court on March 23, 2011 for cross-hearing on Plaintiff’s and Defendant’s Cross-Motions for Partial Summary Judgment as to the issue of whether Plaintiff has complied with Florida Statute § 627.736 (11), and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
1. On October 15, 2005, Gilletin Quinn was involved in a motor vehicle accident in which she sustained injuries.
2. Gilletin Quinn was treated for her injuries by the Plaintiff from October 17, 2005 to January 18, 2006.
3. Gilletin Quinn executed an assignment of benefits which was provided to the Defendant during submission of the bills. The adjuster for the Defendant admits to receiving the Assignment of Benefits from the Plaintiff on November 15, 2005.
4. The Defendant admitted in their response to Plaintiff’s request for admissions that the Plaintiff has Standing.
5. The Plaintiff billed a total of $ 7,070.00 for treatment from 10/17/2005 to 01/18/2006 .
6. The Defendant paid nothing.
7. On or about January 17, 2009, Plaintiff’s counsel submitted a pre-suit demand letter for all the dates of treatment.
8. The purpose of a PIP Demand Letter is to put the insurer on notice of intent to initiate litigation on a PIP claim. Progressive Express Ins. Co. v. Polynice, 12 Fla.L.Weekly Supp. 1015b (Fla.9th Cir.Ct. July 18, 2005).
9. The Defendant’s response to the Demand Letter did not raise any issues with the sufficiency of the Demand Letter but rather contested medical necessity.
10. The Defendant did not raise any purported deficiencies with Plaintiff’s Demand Letter in its response to same and no payments were issued upon demand. The deposition of litigation adjuster Jack O’Hara attached to Plaintiff’s motion establishes the purported failure to attach the Assignment of Benefits did not effect the processing of the demand letter by the Defendant.
11. The Plaintiff filed suit and the Defendant denied Plaintiff’s averment of compliance with all conditions precedent due to a purported lack of compliance with Florida Statute § 627.736 (11) in that the Defendant alleges that Plaintiffs pre-suit demand did not attach an assignment of benefits.
12. On or about June 17, 2010, Plaintiff filed its reply asserting waiver. Plaintiff affirmatively asserted waiver in its reply. Waiver is defined as the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right. Thomas N. Carlton Estate v. Keller, 52 So.2d 131, 133 (Fla. 1951); see Miracle Center Assoc. v. Scandinavian Health Spa, 889 So.2d 877, 878 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1636a]; Miami Dolphins, Ltd. v. Genden & Bach, PA.A and Ed Gorman, 545 So.2d 294, 296 (Fla. 3d DCA 1989); Singer v. Singer 442 So.2d 1020, 1022 (Fla. 3d DCA 1983). A party can waive any contractual, statutory or constitutional right. Thomas N. Carlton Estate, 52 So.2d at 133; Miami Dolphins, Ltd., 545 So.2d at 296. A party may waive any rights to which it is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished. Hammond v. DSY Developers, LLC., 951 So.2d 985, 988 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D708a]; Torres v. K-Site, 500 Assoc., 632 So.2d 110, 112 (Fla. 3d DCA 1994).
13. An insurer can waive defenses through its conduct. Kendall South Medical Center (a/a/o Nelson Esteves) v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 91b (11th Judicial Circuit, 2007. Hon. Robin Faber), Pro Imaging (Elba Garcia) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 982a (17th Judicial Circuit 2007, Hon. Martin R. Dishowitz), NDNC Neurological Treatment Centers, Inc. (a/a/o Mercedes Medina) v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 496b. (17th Judicial Circuit, 2007, Hon. Jay S. Spechler). In United Automobile Insurance Company v. Mary Brown, 15 Fla. L. Weekly Supp. 893b cert. denied January 16, 2009 by the 4th DCA, the Broward Circuit Court held: “United’s course of conduct constituted a ‘waiver’ of such a claim, not only because United failed to notify Ms. Brown of any defect in her claim to allow swift correction, but also because United continued to proceed with examination as though no prima facie defect in the claim existed. . .” In this case, as in Mary Brown, the insurer proceeded to process the claim without advising of any purported deficiency or defenses.
14. Courts have expressly found waiver as it relates to an insurer’s response in relation to Florida Statute 627.736 § (10) or (11). In United Automobile Insurance Company v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (Dade Circuit Court, November 8, 2010), the Dade Circuit Court found waiver where the demand sent by the medical provider failed to include the assignment but where the insurer failed to raise the issue until after suit was filed. The Circuit Court also held in affirming the County Court that the demand satisfied the intent of the statute. In Douglas Rapid Rehabilitation Inc. (a/a/o Nicole Bowen) v. United Automobile Insurance Company, 18 Fla.L. Weekly Supp 312b (November 30, 2010) the Court held the insurer waived any deficiency in the demand letter by failing to raise the issue in response to letter or initial answer.
15. The Court finds the Defendant has waived their right to contest the sufficiency of the demand as well as substantial compliance in that the purported deficiency did not effect the processing of the demand as well as satisfying the notice provision of § 627.736.
ORDERED AND ADJUDGED THAT: the Plaintiff’s Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff as to the sufficiency of the demand letter and Defendant’s Summary Judgment Motion as to Demand Letter is denied.
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