19 Fla. L. Weekly Supp. 797a
Online Reference: FLWSUPP 1910MIDDInsurance — Personal injury protection — Demand letter — Rulings on motions for summary judgment and partial summary judgment regarding sufficiency of demand letter were premature where discovery revealed material issue of fact and future discovery might reveal further disputed issues of material fact regarding insurer’s alleged failure to include in demand letter explanations of benefits reflecting reduced payments made by insurer
ROBERT A. DEMETREE, D.C. INC., a/a/o Matthew Middleton, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 09-42-AP. December 8, 2011. Appeal from County Court, Seminole County. Honorable Donald J. Marblestone, Judge. Counsel: Roy J. Smith IV, for Appellant. Wendy Pepper, Tampa, for Appellee.
ON APPEAL FROM FINAL SUMMARY JUDGMENT AND DENIAL OF PARTIAL SUMMARY JUDGMENT
(SCHOONOVER, Judge.) THIS CAUSE came before this Court on Robert A. Demetree, D.C. Inc. (“Demetree”) a/a/o Matthew Middleton (“Middleton”)’s Appeal timely filed on July 28, 2009. We have jurisdiction F.R. App. P. § 9.030 (c) (A), 9.110. The Court has jurisdiction to review final orders of a lower tribunal. F.R. App. P. 9.110.The standard of review on appeal is De Novo. Fla. Bar v. Rapoport, 845 So. 2d 874 (Fla. 2003) [28 Fla. L. Weekly S174a]. Mills v. Heenan, 382 So. 2d 1317 (Fla. 5th DCA, 1980) Upon review of the record on appeal, responses, filings and briefs thereto, the court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On December 26, 2006, Matthew Middleton, an insured of USAA, was injured in a motor vehicle accident. He sought and received medical services and treatment for his injuries, including, inter alia, that provided by Appellant Demetree. On February 28, 2008, after assignment of benefits, and partial payment of an unspecified amount Demetree submitted medical billing for the remaining amount of $1043.37 to USAA for the medical services and treatment provided and received.
The demand letter, drafted by Attorney Smith, of the Weiss Legal Group, the authorized representative of Demetree, signed by his assistant, and sent to Alan L. Bunge of USAA Casualty Insurance Company, 9800 Fredericksburg Rd., San Antonio, TX 78288 included 31 separate copies of each CMS-1500 Form for the dates of services rendered F. S. § 627.736 (5) (d), Middleton’s assignment of benefits, and included the following information:
a. Patient Name: Matthew Middleton
b. Claim Number: 009383306-006-004
c. Policy Number: 15082-1-21
d. Date of Accident: 12/25/2006
e. A demand for payment of the full amount due within 30 days of $1043.37, plus all other statutory requirements, including interest due F.S. § 627.736 (4), a penalty of 10% of the benefits due in the amount of $104.34, and the cost of postage in the amount of $6.62
The presuit demand letter stated that failure to pay any of the above listed charges within the requisite time limit F.S. § 627.736 (10) may result in USAA being sued without further notice. The letter requested that USAA reserve benefits at least equal to the disputed amount if they declined to make payment.
USAA did not issue full and proper payment, denied certain procedures as billed by Demetree, and reduced the amount billed on grounds the charges exceeded a reasonable amount. USAA paid 80% of the reduced amount. F.S. §§ 627.736 (4) and 627.736 (10). Demetree thereupon filed suit on April 4, 2008.
On August 21, 2008, USAA sent a Request for Admissions Statement attaching a copy of the two page demand for payment letter, the assignment of benefits and the HCFA Claim Forms, and not the Explanations of Reviews or Explanation of Benefits sent to USAA. Plaintiff’s response was “. . . Admitted that the document attached appears to be a copy of the demand letter sent by the Plaintiff to Defendant. However, the document attached appears to lack copies of the Explanations of Reimbursement, which Plaintiff also sent out of courtesy. Also the Assignment of Benefits was not placed in order.”
At a Hearing before the trial court, Plaintiff’s counsel took issue with the facts underlying Defendant’s position, and offered his own affidavit to establish what was actually sent, consisting of the two page demand letter, the CMS-1500 forms, a copy of the assignment of benefits, as well as the Explanations of Reimbursement (“EOR”) that “. . .have notations on them.” Plaintiff’s counsel stated he personally attached the EOR’s to the demand letter with a paper clip and mailed it out, but did not reference it in his affidavit. When queried by the court, the attorney stated “Because I didn’t need to. I just had to say what constituted the demand letter” Hearing T. p.16, 17, 18 (Hearing T. p.14, 16)
Plaintiff’s counsel then argued that the Motion for Summary Judgment should also be denied even assuming that the facts put forth by the Defendant are correct and “that all that was sent was the two page demand letter, the CMS-1500 forms and the Assignment of Benefits. . .that would be enough” (Hearing T. p. 14, 15)
On March 31 2009, a Hearing was held before the trial court on USAA’s Motion for Summary Judgment and Demetree’s Motion for Partial Summary Judgment. There was no Affidavit as to service filed by USAA, who relied on a deposition of USAA employee Amanda Robinson Mitchell, held on September 29, 2008, wherein she stated she did not receive any Explanation of Benefits (“EOBs”) with the letter, but that they “were in the system” and she could have reviewed them, but did not do that. . . .She did not ascertain from that what “. . .exactly was being claimed on the reductions or, you know, what bills or CPT codes or dates of service were being claimed for that amount” (Hearing T. pp. 5,6) in response to a question from Plaintiff’s attorney. . .” So it would have been better had we sent you copies of the Explanation of Benefits?” Ms. Robinson stated “. . .right, because then I would have known where this $1043.37 came from.” When asked if she had ever responded differently in cases where there were forms attached to show the date range but no other document showing the breakdown where the reductions were made, she stated “. . .we don’t have Explanation of Reviews”. (Hearing T. p. 8,9 Dep. T pp.14, 22,23).
USAA concedes that an HCFA form would be sufficient to render payment if there was no reduction. but insufficient if there is a reduction (Hearing T. pp. 26, 27), but argues that F. S. § 627.736 (5)(d) requires a more detailed finding, unless they “owe the whole thing. . . .What’s intended is to attach explanations, a ledger, an itemized statement which shows what they are claiming, where did that $1043.37 come from? Regardless that USAA could have figured it out. Ultimately. Possibly.” (Hearing T. pp. 28,29).
The Trial Court further attempted to ascertain exactly what document was sent with the demand letter to the Defendant USAA. The Court stated that “paragraph one of the demand letter. . .talks about the attached claim forms. The Trial Court then finds that the letter “. . .doesn’t say the attached claim forms and corresponding EORs.” Demetree attorney, Mr. Smith states “it’s my position that would have been enough. . .I probably would not have attached the EORs but for the fact that I had a second copy on my chair and the demand letter hadn’t gone out. So I figured, why not. And in fact, if you look through our request-Response to Request for Admissions, my Response to request for Admissions says, we attached it out of courtesy. . .So by luck and circumstances, it just so happens they were so attached.” USAA wanted the Affidavit struck because (1) it was contradictory evidence, which included the Attorney questions and (2) The affidavit does not state it was mailed. She refers to the deposition testimony from USAA employee Ms. Mitchell that USAA received a demand letter, and CMS-1500 forms and no other submissions. In a footnote in his initial brief, Plaintiff states that the assertion is factually incorrect, as Ms. Mitchell testified at her deposition that she received the demand letter, the CMS-1500 forms and the Assignment of Benefits for the insured. Plaintiff argues there is a strong presumption that since USAA received some of the documentation, enclosed in one envelope, they received it all, thus creating more factual uncertainty, requiring an evidentiary hearing. Allstate Insurance Co. v. Eckert, 472 So. 2nd, 807, 809 (Fla. 4th DCA, 1985
In granting USAA’s motion for Summary Judgment and denying Demetree’s Motion for Partial Summary Judgment the trial court made the following findings of fact and conclusions of law at the hearing:
-A question by an attorney at a deposition is not evidence.
-The affidavit doesn’t say the EORs were mailed, that the attorney looked in the envelope before it was sealed, that he did not seal it, and he did not drop it off at the postal box.
-There is no affidavit from his assistant.
-There cannot be substantial compliance with F.S. 627.736(10) for a demand letter for 31 HCFA’s, and they require interpretation pursuant to F.S. § 627.736 (5)(d).
CONCLUSIONS OF LAW
The Trial Court did not find there were no genuine issues as to material facts, doubt and uncertainty in ruling that Plaintiff failed to comply with pre-suit requirements of F.S. 627.736 (10) (b) (3). The Affidavit of Demetree’s counsel and prior responses by USAA to requests for admission demonstrate there were genuine issues of material fact, doubt and uncertainty in the record which preclude entry of Summary Judgment.
An order on a Motion for Summary Judgment brought pursuant to F.R. Civ. P. 1.510 should be entered only if the pleadings, depositions, answers to interrogatories and admissions on filed together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the movant, upon meeting his burden of conclusively proving the non existence of “genuine trialable issues” is entitled to Summary Judgment as a matter of law. Hall v. Talcott, 191 So. 2d 40-, 43 (Fla. 1966); Smith v. Florida Power and Light Company, et. al., 857 So. 2nd DCA, 2003) [28 Fla. L. Weekly D1953a]. The burden does not shift to the opposing party until that burden is met Snyder v. Cheezum Dev. Corp., 373 So. 2d 719 (Fla. 2nd DCA, 1079). USAA did not meet that burden.
The applicable standard of review by a circuit court sitting as an Appellate Court of a trial decision is De Novo. WSOS-FM, Inc. v. Hadden, 951 So. 2d 61 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D671b]; Horizons Rehab., Inc v. Health Care and Ret. Corp., 810 So. 2d 958, 962 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D122a]. Every possible inference must be drawn from the record in a light most favorable to the non moving party. Id. Any dispute as to the material facts precludes Summary Judgment, Id. The moving party “has the burden of demonstrating the nonexistence of any genuine issue of material fact” Landers v. Milton, 370 So. 2d 378, 370 (Fla., 1979). Once competent evidence is found in support of the motion, the “opposing party must come forward with competent sufficient to reveal a genuine issue. It is not enough to merely assert that an issue does exist.” Id., 4.
The use of admissions under this rule is clearly contemplated as a basis for summary judgments. F.R. Civ. P. 1.510(3e); McKean v. Kloeppel Hotels, Inc. 171 So.2d 552, 555 (Fla. 1st DCA 1965); Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1958) However, trial courts “are required to look beyond the pleadings to determine the propriety of entering summary judgment.” Sher v. Liberty Mut. Ins. Co., 557 So.2d 638, 639 (Fla. 3d DCA 1990).
Florida’s no fault laws are to be construed liberally in favor of the insured United Auto Ins. Co. v. Viles, 726 So. 2d 320 (Fla.3rd DCA 1998) [24 Fla. L. Weekly D14a]. Partial payment utilizing forms that are incomplete or defective is permissible Ivey v. Allstate Ins. Co. 774 So. 2d 679, 683-84 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Florida Medical & Injury Center, Inc. v. Progressive, 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b].
The trial court’s rulings on the motions for summary judgment and partial summary judgment were premature in light of the fact that discovery revealed a material issue of fact and future discovery might create further disputed issues of material fact. See Robson v. Haines, 634 So.2d 831 (Fla. 5th DCA 1994). The parties have not had sufficient discovery opportunities A&B Discount Lumber and Supply, Inc. v. Mitchell 799 So. 2d 301 (Fla. 5th DCA, 2001) [26 Fla. L. Weekly D2405b].
Based on the foregoing, it is Ordered and Adjudged:
1. The Order granting Summary Judgment is VACATED.
2. The Order denying Partial Summary Judgment is VACATED.
3. The Matter is remanded to the trial court for further proceedings not inconsistent with this decision
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