19 Fla. L. Weekly Supp. 205a
Online Reference: FLWSUPP 1903VROSInsurance — Personal injury protection — Demand letter — Where medical provider attached itemized statement to demand letter that set forth name of provider that rendered treatment and each exact amount, date of treatment and type of benefit claimed to be due, demand letter was sufficient — Statute does not require that provider place PIP insurer on notice of exact amount owed or account for prior payments
PROFESSIONAL DIAGNOSTIC READING A/A/O VANESSA ROSA, Plaintiff, v. USAA CASUALTY INS. CO., Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 10-SC-2856-O. March 28, 2011. Honorable Heather Higbee, Judge. Counsel: Adam Saben, Shuster & Saben, LLC, Miami, for Plaintiff. David Hwalek, Herssein & Herssein, Tampa, 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 March 3, 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. Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, finds as follows:Background
This is a case for unpaid P.I.P. benefits. Vanessa Rosa received medical services from Plaintiff on October 14, 2008 for injuries sustained in an automobile accident on August 25, 2008. Prior to filing a lawsuit seeking the unpaid PIP benefits, Plaintiff sent Defendant a Pre-suit Demand Letter pursuant to § 627.736(10) for the above-referenced date of service and attached the CMS-1500 form for said date of service. The Plaintiff also noted the total amount of charges incurred for treatment rendered to Vanessa Rosa in the Pre-suit Demand Letter. The Demand Letter did not reference prior payment made by the Defendant, nor did it attempt to compute the exact amount owed by the Defendant. The Demand Letter did contain a paragraph headed with the words “”The Amount Due” and then instructed the Defendant on various ways on how to compute the amount due based on a number of variables, including whether the deductible applied; whether the policy contained MedPay; whether the carrier was opting to pay using the formula of “200% of the applicable Medicare Part B Fee Schedule”; whether the policy inception period was before or after January 2008, and other factors that would not necessarily be known to the provider, but would be known to the carrier, or that the carrier could discover through proper adjusting of the claim, including through an Examination Under Oath or review of the claims file. The carrier responded to the Plaintiff’s Demand Letter alleging the Plaintiff sent a non-compliant Demand Letter since it failed to a) include the exact amount owed; and, b) failed to reflect prior payments made by the Defendant.
The instant action was filed on or about April 7, 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.Legal Conclusions:
1. The issue before the Court is whether Plaintiff’s pre-suit demand letter complies with § 627.736(10)(a), Florida Statutes, (2008), which 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 cast, there is no dispute that the Plaintiff attached the CMS-1500 HCFA form to the Demand Letter. The Defendant’s position is that this Court must “strictly construe” § 627.736(10). See, Luis Hernandez v. Progressive Express Insurance Company, (14 Fla. L. Weekly. Supp. 232c. Fla. 11th Judicial Circuit 2007). Specifically, the Defendant argues 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. Taking a “strict construction” of the applicable statute, 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. In fact, the Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a MedPay provision on a policy (as well as other issues) are unknown to the claimant, knowledge as to the exact amount owed by the insurer is virtually impossible. A strict construction 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].
3. In this case, Plaintiff’s Demand Letter of May 28, 2010 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). As noted in Horizon Medical Group, Inc. v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 823a (Fla. 11th Judicial Circuit April 16, 2008, Order of Judge Eli Breger), an insurer, such as the Defendant, which retains records as to amounts paid, the total amount of bills received, the order in which bills have been received, the manner in which bills have been applied to the deductible, and the remaining insurance benefits, is possessed of greater knowledge with regard to any given PIP claim as compared to an insured or medical provider to determine the amount which remains payable or may be payable under the policy of insurance. Also see, Mauricio Chiropractic Group a/a/o Rafael Quinones v. USAA Casualty Insurance Group, 18 Fla. L. Weekly Supp 82b (Fla. 9th Judicial Circuit, September 1, 2010, Order of Judge Antoinette Plogstedt, “The statute does not require the Plaintiff, or any claimant, to provide an insurer, including the Defendant, with the exact amount of PIP benefits which are ultimately determined to be due in a specific claim and/or case nor does the statute state that any alleged accounting oversight nullifies an otherwise compliant demand. Such an interpretation would frustrate the legislative intent of the PIP statute; especially in this case where the Defendant was not prejudiced and was able to investigate the claim and determine which amounts were paid and which amounts were not.”)
4. This Court finds that this ruling is also in accord with the legislative intent of Florida Statute § 627.736 (10) as the statute merely requests that a claimant itemize each amount it claims to be due. Mauricio Chiropractic Group a/a/o Rafael Quinones v. USAA Casualty Insurance Group, 18 Fla. L. Weekly Supp 82(b). Also see, Westchester Rehabilitation Center a/a/o Julio Vidal v. State Farm Mutual Automobile Insurance Company, (Fla. Miami-Dade County Case No.: 10-2775 SP 26, Order of Judge Gladys Perez, February 15, 2011); and, Quality Medical Group a/a/o Luz Rodriguez v. State Farm Mutual Automobile Insurance Company, (Fla. Miami-Dade County Case No.: 10-15652 SP 23(1), Order of Judge Myriam Lehr, March 2, 2011); Therefore, this Court holds that there is no requirement in 627.736 (10) for a claimant to place an insurance carrier on notice as to the exact amount owed or that the Pre-suit Demand Letter account for prior payments made by the insurer.
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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