19 Fla. L. Weekly Supp. 941a
Online Reference: FLWSUPP 1911TORRInsurance — Personal injury protection — Demand letter — Presuit demand letter was deficient where all relevant forms were not attached to letter and amount due stated in letter did not match amounts in attached forms — Second demand letter could not remedy initial demand letter where second letter was sent after suit was filed — Even if second letter had been sent before suit was filed, letter was deficient for failing to include itemized statement specifying amount due and proof of assignment
WEST COAST CHIROPRACTIC AND MEDICAL CENTER, INC. a/a/o JORGE TORRES, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-CC-009763, Division L. April 26, 2012. Joelle Ann Ober, Judge. Counsel: Roberto R. Alayon, Roberto R. Alayon, P.A., Tampa, for Plaintiff. Chad C. Guzzo and Robert M. Lyerly, Masten, Peterson & Denbo, LLC, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant MGA Insurance Company, Inc.’s Motion for Summary Judgment Regarding Pre-Suit Demand and Incorporated Memorandum of Law. After reviewing the motion, the arguments of counsel, the record, and the applicable law, the Court finds as follows.
FACTUAL BACKGROUND
Jorge Torres had a Personal Injury Protection (“PIP”) insurance policy through Defendant MGA Insurance Company. On June 2, 2009, Torres was injured in an automobile accident. On June 3, 2009, Torres began treatment for his injuries with Plaintiff West Coast Chiropractic Medical Center, Inc. Plaintiff treated Torres for his injuries between June 3, 2009 and October 2, 2009. On June 3, 2009, Torres assigned his insurance policy benefits to Plaintiff. On October 26, 2009, Plaintiff sent a pre-suit demand letter to Defendant. On November 13, 2009, Defendant responded to Plaintiff and indicated that the October 26, 2009 pre-suit demand letter was deficient. The letter, Defendant indicated, did not include an itemized statement specifying each amount due. On April 9, 2010, Plaintiff filed suit. On December 5, 2011, Plaintiff sent a second letter to Defendant. On January 24, 2012, Defendant again responded to Plaintiff, indicating that the December 5, 2011 letter was deficient because suit had already been filed, as well as because it did not include an itemized statement specifying each amount due and proof of assignment of benefits. On February 10, 2012, Defendant filed a Motion for Summary Judgment.
DISCUSSION
The issue before the Court is narrow: whether Plaintiff’s October 26, 2009 pre-suit demand letter provided Defendant with “written notice of an intent to initiate litigation.” In order to make this determination, the Court must determine whether the Plaintiff complied with the requirements outlined in § 627.736(10), Fla. Stat. This determination is a question of law. Chambers Medical Group, Inc. (a/a/o Marie St. Hillare) vs. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a Circuit Court, (13th Jud. Cir., December 1, 2006).
Defendant argues that summary judgment is proper because both the October 26, 2009 letter and the December 5, 2011 letter failed to meet the requirements outlined in § 627.736(10), Fla. Stat. The first letter, Defendant alleges, failed to include an itemized statement specifying each amount due, as required by § 627.736(10), Fla. Stat. The first letter did not attach all of the relevant forms, and the amounts contained in the forms did not match the stated amount due on the face of the letter. Essentially, the numbers did not match up, and thus, the letter did not inform Defendant what was owed. Defendant next argues that because the second letter was sent after suit had been filed, it could not possibly serve as “written notice of an intent to initiate litigation.” In addition, even if the second letter had been sent at the proper time, Defendant alleges, it still failed to meet the requirements of § 627.736(10), Fla. Stat. for the same reasons as the first letter. The second letter also failed to include proof of an assignment. Accordingly, Defendant argues, summary judgment is proper.
Section 627.736(10), Fla. Stat. states as follows:
(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, including any 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 upon 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 faun 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) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
Thus, before a plaintiff may file suit for a PIP claim, he must first give the defendant written notice of an intent to initiate litigation in the form of a pre-suit demand letter. The letter “shall state with specificity” an “itemized statement specifying each exact amount” due. Florida courts have held that this language is unambiguous and places the burden upon the plaintiff to fulfill the requirements outlined. MRI Associates of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b], reh’g denied (June 24, 2011). Courts have also held that the specifications of § 627.736, Fla. Stat. must be strictly construed. See Chambers Medical Group, Inc. (a/a/o Marie St. Hillare) vs. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a Circuit Court, (13th Jud. Cir., December 1, 2006); MRI Associates of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b], reh’g denied (June 24, 2011); Fountain Imaging of West Palm Beach, LLC v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 614a (15th Jud. Cir. March 30, 2007). Florida Courts have consistently held that where a plaintiff fails to meet the requirements of § 627.736(10), Fla. Stat., summary judgment for the defendant is proper. Fountain Imaging of West Palm Beach, LLC v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 614a (15th Jud. Cir. March 30, 2007). See also Chambers Medical Group, Inc. (a/a/o Marie St. Hillare) vs. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a Circuit Court, (13th Jud. Cir., December 1, 2006) (citing Bridgeport, Inc. v. Tampa Roofing Co., 903 So. 2d 306 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1445b]).
Here, the October 26, 2009 letter did not include an itemized statement specifying each amount due. Thus, it failed to meet the requirements set out in § 627.736(10), Fla. Stat. Plaintiff may have meant to remedy the October 26, 2009 letter with the December 5, 2011 letter, but at that point, suit had already been filed, and the time had passed for a pre-suit demand letter. Further, even if the second letter had been sent at the right time, it still failed to meet the requirements of the statute because it failed to include an itemized statement specifying each amount due, and it failed to include proof of an assignment. As such, neither letter served as the basis to give Defendant notice of intent to initiate litigation. Because Plaintiff failed to meet the requirements of § 627.736(10), Fla. Stat., and because the statute must be strictly construed, the Court finds that Defendant is entitled to judgment as a matter of law.
It is therefore ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment Regarding Pre-Suit Demand and Incorporated Memorandum of Law is hereby GRANTED.
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