19 Fla. L. Weekly Supp. 803b
Online Reference: FLWSUPP 1910BAYTInsurance — Personal injury protection — Demand letter — Where demand letter stated incorrect date of accident and claim number, but claim forms and assignment attached to letter contained correct date of accident and policy number, demand letter substantially complied with statutory requirements by providing sufficient notice of covered loss
THE STAND-UP MRI OF ORLANDO, P.A., a/a/o LLEWELLYN BAYTOPS, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 09-43. L.C. Case No. 2006-SC-9469. June 18, 2012. Appeal from the County Court, in and for Orange County. Wilfredo Martinez, Judge. Counsel: Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellant. Betsy E. Gallagher, Kubicki Draper, Tampa, for Appellee.
(Before MIHOK, LAUTEN, SHEA, J.J.)
(PER CURIAM.)FINAL ORDER REVERSING TRIAL COURT
Appellant, The Stand-Up MRI of Orlando, P.A. (“Stand-Up”), as assignee of Llewellyn Baytops (“Baytops”), brought an action to recover Personal Injury Protection (“PIP”) benefits for treatment rendered to Baytops, an insured of Appellee, Progressive American Insurance Company (“Progressive”). Stand-Up filed a timely appeal of the trial court’s “Order Granting Defendant’s Motion for Summary Final Judgment”. This Court has jurisdiction pursuant to section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.Summary of Facts and Procedural History
As alleged by Stand-Up, on or about April 20, 2005, the insured Baytops sustained injuries from an automobile accident. Stand-Up provided Baytops medical services for her injuries. Subsequently, Stand-Up sought payment by Progressive for the medical services it provided. While Progressive paid for some of the medical services, it did not pay for all services. In December 2005, Stand-Up filed suit against Progressive in the County Court in Seminole County seeking recovery of No-Fault benefits pertaining to medical services it provided on August 27, 2005. In response, Progressive brought a motion to dismiss and/or transfer venue to Orange County and per the motion, discovery ensued. On August 10, 2006, the Court granted the motion. Over the following years, various motions were brought, pleadings were amended, and discovery continued.
Progressive argued in its affirmative defenses and motion for summary final judgment that: (1) Stand-Up failed to satisfy all conditions precedent to obtain PIP benefits because the pre-suit demand did not comply with subsection 627.736(11), Florida Statutes (2005). Specifically, the claim number identified in the demand letter pertained to a previous accident that Baytops was involved in on November 28, 2004, whereas Stand-Up’s health insurance claim form (“CMS 1500 form”) and the Complaint identified the date of loss as April 20, 2005 and (2) The medical services provided by Stand-Up were unreasonable, unnecessary, unrelated to the accident and/or the charges were unreasonable. In particular, Progressive argued that the referral for the lumbar MRI at issue was done at a time when chiropractic benefits for the accident at issue had been suspended based on reasonableness, relatedness and medical necessity of treatment.
Stand-Up, in its response in opposition to Progressive’s motion for summary final judgment, stressed that the statute requires that either the correct claim number or the correct policy number be included in the pre-suit demand letter. Stand-Up argued that its demand letter satisfied the statutory requirements by referencing the correct policy number in the CMS 1500 form that was attached to it. Further, Stand-Up argued that the CMS 1500 form and the assignment of benefits document also attached to the demand letter referenced the correct date of loss of April 20, 2005. Thus, Stand-Up argued that based on the information it provided, Progressive was put on notice of the PIP claim at issue.
Progressive’s motion for summary final judgment was heard on April 15, 2009 and the trial court entered the order granting the motion on June 6, 2009. In the order, the trial court ruled that strict compliance with the notice requirements under subsection 627.736(11), Florida Statutes (2005), was necessary to effect the purpose of the PIP statute and that the statute mandates that the claim or policy number be contained in the actual demand letter notwithstanding that the attachments to the letter contained the correct information. Thus, the trial court concluded that Stand-Up failed to comply with the statutory condition precedent. Subsequently, on August 17, 2009, per granting the motion, the trial court entered the “Order Entering Final Judgment Against Plaintiff”.Issues on Appeal
Stand-Up argues on appeal: (1) The trial court erred as a matter of law in its interpretation and application of subsection 627.736(11), Florida Statutes (2005), by ruling that the demand letter failed to comply with the statute’s requirements. Stand-Up claims that the demand letter was not defective, constituted sufficient notice, and substantially complied with the statute’s requirements because the CMS 1500 form, assignment of benefits, and explanation of benefit forms contained the correct date of the accident and the policy number; (2) The doctrines of waiver and estoppel prevent Progressive from obtaining the remedy that it seeks; and (3) Progressive had an affirmative duty to its insured under the No Fault Law to act with good faith to notify the insured of any alleged technical defect to allow for the opportunity to remedy the defect and receive the insurance coverage paid for.
Conversely, in its Answer Brief, Progressive argues that the trial court’s entry of summary judgment was proper because Stand-Up’s demand letter failed to notify Progressive of the correct date of the claim at issue, hindering its ability to respond and avoid being sued. Further, Progressive argues that Stand-Up did not preserve for appeal the arguments addressing substantial compliance, waiver, estoppel, and failure to act in good faith. Lastly, Progressive argues that notwithstanding the preservation issue, the argument addressing the failure to act in good faith lacks merit because the issue in this appeal centers on Stand-Up’s compliance with a condition precedent, not as to coverage.
In its Reply Brief, Stand-Up cites cases with rulings that occurred after the trial court’s summary judgment decision in the instant case. In the cited cases, the courts found that substantial compliance with Florida’s No-fault Law must be considered by the trial court when determining whether the statute’s demand requirements have been fulfilled.Standard of Review
The issue in this case is whether the trial court erred in granting Progressive’s motion for summary final judgment. The standard of review for summary judgment is de novo. Krol v. City of Orlando, 778 So. 2d 490, 491 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]. Accordingly, this Court must determine if there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. at 491-92, citing Fla. R. Civ. P. 1.510(c).
In the instant case, the information contained in the pre-suit demand letter and attachments was not in dispute. Instead, Progressive’s motion for summary final judgment and the trial court’s ruling on the motion centered around whether the information complied with the form requirements for the pre-suit demand letter and attachments under subsection 627.736(11), Florida Statutes (2005). Accordingly, as for the first prong of review, this Court finds that there were no genuine issues of material fact in the lower case to preclude the rendering of the trial court’s summary final judgment order. Therefore, this Court will provide the second prong of review as to whether Progressive is entitled to judgment as a matter of law. State v. Presidential Women’s Center, 937 So. 2d 114 (Fla. 2006) [31 Fla. L. Weekly S210a]; Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So. 2d 695 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2072b].Discussion
First, from review of the court record, this Court concurs with Progressive that Stand-Up’s arguments as to waiver, estoppel, and failure to act in good faith were not preserved on appeal and therefore will not be considered by this Court. However, in light of the court rulings that occurred after the trial court’s ruling in the instant case, this Court will address Stand-Up’s argument that the demand letter with attachments substantially complied with the statute.
Stand-Up, in support of its argument, cites the Fifth District Court of Appeal’s ruling in Florida Medical & Injury Center, Inc., v. Progressive Express Insurance Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b], where the Fifth District addressed the issue as to the requirements for the D & A form under subsections 627.736(5)(e) and 627.736(4)(b), Florida Statutes. The issue was brought to the Fifth District due to conflicting rulings from two cases in the Eighteenth Judicial Circuit. The Fifth District in its ruling provided clarification as to the interpretation and application of subsections 627.736(4)(b) and 627.736(5)(e), Florida Statutes, as they relate to the Disclosure and Acknowledgment form (“D & A form”). In its ruling, the Fifth District stated:
There is no language in paragraph (5)(e) that even suggests that failure to provide the properly completed form to the insurer is failure to provide notice of the covered loss to the insurer, or that such failure will render the provider’s bills not payable. If the Legislature had intended this result, it could have said so. We are not at liberty to re-write the statute. Id. at 338.
The Fifth District stressed that Florida’s no-fault laws are construed liberally in favor of the insured in order to ensure that the purpose of the laws is carried out by providing for the swift payment of reasonable and necessary medical, funeral, and disability insurance benefits without regard to fault. Id. at 341. Accordingly, the Fifth District’s ruling in Florida Medical included findings that the attachment of medical records to the D & A form for payment of PIP benefits was sufficient notice to the insurer of the fact and amount of a covered loss and the failure to submit a flawless D & A form did not preclude an insured or his assignee from filing an action for PIP benefits. See also United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 26 So. 3d 21, 24-25 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] (holding that bills provided to insurer were substantially complete even though forms and records lacked physician’s license number, but included physician’s name); USAA Casualty Insurance Co. v. Pembroke Pines MRI, Inc., 31 So. 3d 234, 237-238 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] (holding that, per the definition portion of the No-Fault Law under subsection 627.732(13), Florida Statutes, the plaintiff provided substantially complete and accurate responses to all relevant information and material elements of the form).
The proceedings and entry of the trial court’s order granting summary final judgment in the instant case occurred prior to the rulings in Florida Medical, United Auto., and USAA Casualty. However, disposition of a case on appeal should be made in accordance with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered. Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978). Further, as Stand-Up argues, the trial court in its ruling relied upon the case, Progressive Express Insurance Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) [32 Fla. L. Weekly D2891a]. Since the filing of Stand-Up’s Initial Brief, the Florida Supreme Court reversed the Third District in Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S81a]. Accordingly, this Court finds that the analysis utilized by the courts in Florida Medical, United Auto., and USAA Casualty as discussed above can be applied to the instant case.
Upon review of the court record, this Court finds that both the CMS 1500 form and the assignment of benefits document attached to the demand letter state April 20, 2005 as the date of accident/injury/loss. Specifically, the date is stated in box 14 in the CMS 1500 form and in the upper right hand corner in the assignment of benefits document. Also, the policy number is stated in box 11 in the CMS 1500 form. Thus, applying a similar analysis as was done in the cases discussed above, it is reasonable to find that Stand-Up’s demand letter with the CMS 1500 form and the assignment of benefits document as attachments, substantially complied with the statutory requirements under subsection 627.736(11), Florida Statutes (2005), by providing sufficient notice of a covered claim/loss.
Accordingly, the trial court’s ruling that granted Progressive’s motion for summary final judgment based on strict compliance, instead of substantial compliance, with subsection 627.736(11), Florida Statutes (2005), must be reversed.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
1. The trial court’s “Order Granting Defendant’s Motion Summary Final Judgment” entered June 6, 2009 and “Order Entering Final Judgment Against Plaintiff” entered August 17, 2009 are REVERSED and this cause is REMANDED for further proceedings consistent with this opinion.
2. Stand-Up’s motion, “Appellant’s Second Amended Motion for Appellate Fees” filed April 30, 2010 pursuant to subsection 627.736(8) and section 627.428, Florida Statutes, and Rule 9.400, Fla. R. App. P., is GRANTED as to the attorneys’ fees and the assessment of those fees is REMANDED to the trial court. Stand-Up is entitled to have costs taxed in its favor by filing a proper motion with the trial court pursuant to 9.400(a), Fla. R. App. P.
3. Progressive’s “Motion for Appellate Attorney Fees” filed March 30, 2010 is DENIED.
* * *
