19 Fla. L. Weekly Supp. 1033a

Online Reference: FLWSUPP 1912RICKInsurance — Personal injury protection — Demand letters that were sent before claims were overdue and failed to account for partial payments made by insurer failed to satisfy condition precedent to suit for PIP benefits

MEDICAL THERAPIES, INC. d/b/a ORLANDO PAIN CLINIC, as assignee of Sonja M. Ricks, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 11-SC-5923-O. August 10, 2012. Deborah B. Ansbro, Judge.

AFFIRMED. 22 Fla. L. Weekly Supp. 34aFINAL SUMMARY JUDGMENT IN FAVOR OFDEFENDANT STATE FARM MUTUALAUTOMOBILE INSURANCE COMPANY

THIS CAUSE having come to be heard on June 21, 2012 on Defendant’s Motion for Summary Judgment, and the Court, having reviewed the file and having been duly advised in the premises, makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff’s Complaint seeks allegedly unpaid personal injury protection benefits stemming from medical services allegedly provided on July 19 and 20, 2010. The Complaint was filed on August 18, 2011.

2. Defendant timely served and filed an Answer and Affirmative Defenses which included a defense that Plaintiff failed to comply with a condition precedent to the filing of the above-styled action because its demand letter did not comply with Fla. Stat. §627.736(10).

3. Plaintiff did not serve a Reply to Defendant’s Affirmative Defense.

4. Defendant served and filed a Request for Admissions on December 9, 2011 which attached Plaintiff’s purported demand letter under Fla. Stat. §627.736(10), authenticated the purported demand letter as admissible for the purposes of summary judgment and sought an admission that Defendant had actually paid $267.28 of the $605.00 sought by Plaintiff’s purported demand prior to the service of the demand.

5. Plaintiff did not respond to the Request for Admissions, move for an enlargement of time within the time period provided by the Florida Rules of Civil Procedure or move for the opportunity to deny any of the admissions sought in Defendant’s Request for Admissions. Consequently, the facts in Defendant’s request for Admissions are admitted. Rule 1.370(a) Fla. R. Civ. P.

6. Plaintiff never served a demand letter that accounted for the payment of $267.28 made by State Farm on or about August 5, 2010.

7. On June 19, 2012, Plaintiff served a copy of an Affidavit of Plaintiff’s alleged office manager, Deborah Garn.

8. The Affidavit has a purported demand letter attached, separate and distinct from the purported demand letter attached to the Request for Admissions.

9. The Affidavit admits that at that time the “demand” was prepared, the witness did not account for Defendant’s payment, when in fact, partial payment had been made.

CONCLUSIONS OF LAW

Rule 1.510(b) of the Florida Rules of Civil Procedure provides that, “A party against whom a claim, counterclaim, cross-claim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.” Rule 1.510(b) Fla. R. Civ. P. Such a motion must state with particularity the grounds upon which it is based and identify the specific admissible evidence upon which the moving party relies. Rule 1.510(c), Fla. R. Civ. P. Summary judgment is proper when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id.; Gimenez v. Napoles, 928 So. 2d 506, 507 (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D1343e]; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].

Fla. Stat. §627.736 provides a frame work for billing and payment of medical benefits from an automobile insurance policy providing personal injury protection benefits. The Statute requires a “demand letter,” as a condition precedent to the filing of any action for purportedly overdue benefits. Fla. Stat. §627.736(10). In pertinent part, the law provides:

(10) 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.

(b) The notice required shall state that it is a “demand letter under s. 627.736(10)” and shall state with specificity:

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.

Id. (emphasis supplied). Here, Plaintiff is attempting to rely on a demand letter (both the one attached to the admitted Request for Admissions and the one attached to the Affidavit) to satisfy the condition precedent to filing the above-styled action that simply does not comply with the statute. The bills for the dates of service in dispute were partially-paid at the time both demand letters were sent. Indeed, the demand letter attached to the affidavit also appears to have been sent before the claim was overdue, in clear violation of Fla. Stat. §627.736(10)(a).

“Demand letter requirements are intended to be, and must be, strictly construed to effectuate their purpose.” Chambers Medical Group, Inc. a/a/o Angelica Manzano v. Progressive Exp. Ins. Co., 12 Fla. L. Weekly Supp. 556a (Fla. 13th Jud. Cir. Hillsborough Co., Co. Ct., March 18, 2005). A purported demand letter does not satisfy the condition precedent under Fla. Stat. §627.736(10) when it requests amounts that are incorrect and not overdue. Mark Machuga, DC, PA a/a/o Charles Andre v. State Farm Mut. Auto. Ins. Co., 14 Fla. L. Weekly Supp. 1069a (Fla. 18th Jud Cir. Seminole Co., Co. Ct., August 16, 2007).¹ In Machuga, “Plaintiff’s demand letter requested Defendant remit $5,210.00, when the uncontroverted record evidence reveals that the amount was never due. Further, the demand letter failed to take into account the numerous payments made by the Defendant which would have significantly reduced the $5,210.00 Plaintiff alleged was owed.” Id. Here, Plaintiff’s demand letters requested Defendant remit $605.00 when the uncontroverted record evidence reveals that amount was never due.

Further, the demand letters both failed to take into account the payment made by Defendant which would have significantly reduced the $605.00 Plaintiff alleged was owed. Cf, Physical Therapy Group, LLC a/a/o Harry Morales v. Mercury Ins. Co., 13 Fla. L. Weekly Supp. 889c (Fla. 11th Jud. Cir. Miami-Dade Co., Co. Ct., June 2, 2006) (“Plaintiff must specify each exact amount at issue for each individual service charge at issue, along with an accurate account of total amount that is being claimed as due.” Emphasis original); First Health Chiropractic a/a/o Sheila Gholami v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 484a (Fla. 9th Jud. Cir. Orange Co., Co. Ct. October 25, 2010) (“Plaintiff must . . . tabulate . . . an accurate account of the total amount that is being claimed due.”).

Cases and authorities cited by Plaintiff are inapposite; they either do not address demand letters under Fla. Stat. §627.736(10) at all, or address issues surrounding demands that are not presented by the demand letters presently before the Court. Specifically, Plaintiff cites Florida Medical & Injury Center, Inc. v. Progressive Exp. Ins. Co., 29 So.3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] despite the fact that the case did not involve pre-suit demand letters, but rather with the disclosure and acknowledgment form under Fla. Stat. §627.736(5). Indeed, the Court there specifically found that the disclosure and acknowledgment form was not a condition precedent to obtaining payment of medical expenses: “if the Legislature intended to require a complete D&A form as a condition precedent . . . the statute would have explicitly said so.” Id., at 339. In contrast, a demand is explicitly described in Fla. Stat. §627.736(10) as a condition precedent to filing an action.

Another inapposite authority cited by Plaintiff here is USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc., 31 So.3d 234 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b]. In that case, the Court addressed whether a provider of MRI services was entitled to reimbursement when its CMS-1500 did not contain a professional license number of the provider in box 31, in apparent violation of Fla. Stat. §627.736(5)(d). The issue there turned on the definition of the term “properly completed” which was specifically defined in Fla. Stat. §627.732 and includes, “substantially complete and substantially accurate.” Id., at 238. Here, the issue has nothing whatever to do with Fla. Stat. 627.736(5) and therefore, substantially complete and/or accurate is simply not part of the formula for determining an issue under Fla. Stat. §627.736(10).

Finally, Plaintiff presents an Orange County Circuit Court Appellate opinion, Stand-Up MRI of Orlando, P.A. a/a/o Baytops v. Progressive American Ins. Co., CVA1 09-43 (Fla. 9th Jud. Cir. Orange Co., Cir. Ct. Appellate, June 18, 2012). The decision finds a demand letter that has a claim form and assignment attached that contain incorrect accident dates and claim numbers compliant with the PIP demand letter statute. The case does not address the circumstance present here, where the demand letter and the attachments do not account for prior payments, seek payment for amounts that are not overdue and do not state the exact amount claimed to be due as explicitly required by Fla. Stat. §627.736(10). As such, the opinion does not apply to the facts presented here.

Indeed, Plaintiff has provided no facts which create a dispute requiring resolution by a fact-finder and no legal authority that is on point to refute the persuasive authorities provided by Defendant. By virtue of the undisputed facts and the law that applies to those facts, it is hereby ORDERED and ADJUDGED as follows:

1. Defendant’s Motion for Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and against MEDICAL THERAPIES, INC. d/b/a ORLANDO PAIN CLINIC. Plaintiff shall take nothing by this action and Defendant shall go hence without day.

2. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm and against Plaintiff, including jurisdiction to determine entitlement to, and the amount of, such attorneys’ fees.

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¹The decision was affirmed on appeal, 07-72AP, 18th Jud. Cir, Seminole Co. Cir. Ct. Appellate, March 31, 2009.

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