20 Fla. L. Weekly Supp. 694c
Online Reference: FLWSUPP 2007SOLOInsurance — Personal injury protection — Demand letter — Where billing ledger attached to demand letter contained incorrect double charge for one date of service, demand letter was defective and failed to satisfy condition precedent to suit — Final summary judgment is entered for insurer
FOUNDATION CHIROPRACTIC CLINIC, INC. a/a/o DIEGO SOLORZANO, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502011SC006973XXXXMB(RJ). Claim No. 59-A670-488. May 3, 2013. Honorable Sandra Bosso-Pardo, Judge. Counsel: Frank T. Noska, III, Law Offices of Frank T. Noska III, P.A., Palm Beach, for Plaintiff. John Gioannetti, Roig, Tutan, Rosenberg, Martin & Stoller, P.A., Deerfield Beach, for Defendant.
AMENDED FINAL JUDGMENT FOR THE DEFENDANT
THIS CAUSE having come before the Court for re-hearing on March 21, 2013 on Defendant’s Motion for Final Judgment on the Pleadings and/or Final Summary Judgment and the Court having reviewed the Motion, the supporting affidavit, the deposition of Dr. Charles Mitzelfeld; the entire Court file; and reviewing the relevant legal authorities; having heard arguments by Counsel; having made a thorough review of the matters filed on record; and having been otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:Background
This is an action by the Plaintiff, Foundation Chiropractic Clinic, Inc., as assignee of Deigo Solorzano to recover alleged overdue Personal Injury Protection (“PIP”) benefits from the Defendant, State Farm Mutual Automobile Insurance Company.
On May 25, 2011, the Defendant, State Farm Mutual Automobile Insurance Company, received a pre-suit demand letter from Plaintiff, dated May 23, 2011, requesting allegedly overdue PIP benefits under Florida Statute §627.736(10) for medical treatment and/or services rendered to Deigo Solorzano as a result of alleged injuries he sustained in a motor vehicle accident on November 1, 2010. This pre-suit demand letter requested PIP benefits in the amount of $7310.00 at 80% minus the previously reimbursed amount of $1068.37 for medical services ranging between dates of service January 3, 2011 through March 9, 2011. Attached to this demand letter was the billing ledger which double billed an amount of $900.00 for date of service January 6, 2011. State Farm Mutual Automobile Insurance Company received bills for date of service January 6, 2011 in the amount of $900.00 for CPT codes 98941, 97012, 97014, 97035, and 97124-59. However, during the deposition testimony of Dr. Charles Mitzelfeld on September 10, 2012 he admitted the Plaintiff double billed date of service January 6, 2011 and the correct amount that should have been billed for that date of service was $450.00.
On January 11, 2013, Defendant filed its Motion for Final Judgment on the Pleadings and/or Final Summary Judgment and set this Motion to be heard on February 19, 2013. In response, Plaintiff filed its Response Motion for Partial Summary Judgment and/or Request to Abate on February 18, 2013.
At the February 19, 2013 hearing, the Defendant argued that the Plaintiff failed to meet a necessary condition precedent to filing suit when it submitted a pre-suit demand letter which did not comply with Florida Statute, §627.736(10). Plaintiff argued that it met the necessary conditions precedent pursuant to Florida Statute, §627.736(10). Alternatively, the Plaintiff argued that if it had failed to fulfill the necessary condition precedent, then the appropriate remedy would be an abatement of the proceedings and not a final summary judgment.
After arguments, the Court ruled that although the pre-suit demand letter was defective, it is curable and ordered an abatement of the proceedings. The Court denied the Defendant’s Motion for Final Judgment on the Pleadings and/or Final Summary Judgment and granted Plaintiff’s Motion to Abate. Subsequently, on February 26, 2013, the Court entered an Order Setting Re-Hearing on Defendant’s Motion for Final Judgment on the Pleadings and/or Final Summary Judgment. This re-hearing was scheduled for March 21, 2013.Undisputed Facts
The facts material to Defendant’s Motion for Final Summary Judgment are undisputed and established by the pleadings and discovery on record, and the material facts are set forth below.
The Defendant issued a policy of insurance to Deigo Solorzano, which provided PIP benefits with limits up to $10,000.00. This policy was in full force and effect on the date of the subject accident on November 1, 2010. The Defendant received bills from the Plaintiff which indicated medical treatment was rendered to Deigo Solorzano for dates of service January 3, 2011 through March 9, 2011.
It is undisputed that State Farm Mutual Automobile Insurance Company received bills for date of service January 6, 2011 in the amount of $900.00 for CPT codes 98941, 97012, 97014, 97035, and 97124-59.
That on September 10, 2012, the Defendant obtained the deposition of Dr. Charles Mitzelfeld. During the deposition of Dr. Charles Mitzelfeld, he testified that the Plaintiff had double charged for January 6, 2011 and while the Plaintiff had billed State Farm Mutual Automobile Insurance Company $900.00, the correct charge should have been $450.00.
That Plaintiff’s demand letter dated May 23, 2012 and received by the Defendant on May 25, 2012 attached a billing ledger which listed the incorrect amount of $900.00 for date of service January 6, 2011.
The Plaintiff did not submit an updated demand letter to the Defendant listing the correct dates of service and the correct amount which it alleged was due and owing. That the amount listed in Plaintiff’s demand letter is incorrect as it lists an additional amount of $450.00 which was not due and owing.Findings of Law
The Court hereby adopts the foregoing findings of fact.
Florida Statute, 627.736(10), states in pertinent part:
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 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.
The legislature has mandated that the “Demand Letter” requirements of Florida Statute, §627.736(10) must be strictly adhered to and the failure to do so does not satisfy the demand letter condition precedent set forth in the Statute. See MRI Associates of America, LLC (a/a/o Ebba Register) v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. The language of subsection §627.736(10)(b)(3) requires precision in a demand letter by its requirement of an “itemized statement specifying each exact amount.” See Id. The statute mandates that the amount at issue for a bill be specified early in the claim process. Id. The pre-suit demand letter must provide proper notice of the exact amount due. Id., citing to Fountain Imaging of West Palm Beach, LLC. V. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (Fla. 15th Cir. Ct. March 30, 2007).
Dr. Mitzelfeld admitted that he had overcharged State Farm Mutual Automobile Insurance Company by $450.00. Pursuant to Florida Statute, §627.736(4)(b), “[p]ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” State Farm Mutual Automobile Insurance Company should never have been double charged for date of service January 6, 2011, and therefore that additional $450.00 could never have been due and owing pursuant to Florida Statute, §627.736(4)(b). As a result, the pre-suit demand letter included a request for PIP benefits that were never overdue pursuant to §627.736(4)(b). See MRI Associates of America, LLC (a/a/o Ebba Register) v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].
The language in the statute is clear and unambiguous. Florida Statute, §627.736(10) states that a demand letter “notice may not be sent until the claim is overdue” and that under §627.736(4)(b) “[p]ersonal injury protection insurance benefits[. . .]shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” “Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law.” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a]. The Legislature’s intent must be determined primarily from the statutory language. See Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla. 2000) [25 Fla. L. Weekly S331a]. If the statutory language is clear and unambiguous, the statute must be given its plain and obvious meaning. Id.
Although substantial compliance may be allowed in certain parts of the PIP statute, it is clear from legislative intent and the current case law that strict specificity must be adhered to regarding the demand letter requirement. The Plaintiff failed to strictly adhere to the demand letter requirements as required under Florida Statute 627.736(10) when it listed charges in the demand letter that were clearly not rendered to the patient and/or submitted in error. Thus, as the Plaintiff’s demand letter lists an amount that is due and owing that is clearly incorrect, the Plaintiff has not satisfied the condition precedent to filing this lawsuit and as such has failed to comply with Florida Statute 627.736(10). This requirement of precision in medical billing discourages gamesmanship on the part of those who might benefit from confusion and delay. MRI Associates of America, LLC (a/a/o Ebba Register) v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. Furthermore, the statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits. See Id., citing to Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 879-880 (Fla. 2010) [35 Fla. L. Weeky S222b]
Having determined the Plaintiff’s pre-suit demand letter to be defective, the next issue to be addressed involves the Plaintiff’s argument that the appropriate remedy for a defective pre-suit demand letter is an abatement of the proceedings to allow for submission of a corrected demand letter. Plaintiff contends that if a lawsuit is prematurely filed, the proper remedy at the trial level is an abatement or stay of the action. Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994).
However, this Court finds that abatement is not the appropriate remedy for the facts surrounding this case. The Plaintiff’s lawsuit is not simply premature because, by definition, mere prematurity is curable simply by the passage of time. Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989). In this case, however, Plaintiff did not simply submit a premature demand letter, rather, the Plaintiff’s demand letter includes an additional $450.00 of charges which were never due and owing. By including these incorrect charges, the Plaintiff’s pre-suit demand letter failed to comply with a necessary statutory condition precedent. This means the lawsuit is not merely premature, and dismissal, not abatement, is the proper remedy. Progressive Express Insurance Co., Inc. v. Menedez, 979 So.2d 324, 333 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a] citing Levine v. Dade County Sch. Bd., 442 So. 2d 210, 212-213 (Fla. 1983).
During the hearing the Plaintiff verbally announced a voluntary dismissal and nonsuit. The Court proceeded with the hearing and this ruling based upon Florida Rules of Civil Procedure 1.420(a), Although filed as a small claims case, Florida Civil Rules of Procedure were invoked per Order dated August 29, 2011.Final Judgment
IT IS HEREBY ORDERED AND ADJUDGED that the Court hereby vacates the Order dated February 18, 2013 denying the Defendant’s Motion for Judgment on the Pleadings, denying Defendant’s Motion for Final Summary Judgment, and granting Plaintiffs Motion to Abate the proceedings. Defendant’s, State Farm Mutual Automobile Insurance Company, Motion for Final Summary Judgment is hereby granted, and Final Judgment is hereby entered on behalf of Defendant, State Farm Mutual Automobile Insurance Company. The Plaintiff’s, Foundation Chiropractic Clinic, Inc. a/a/o Diego Solorzano, Motion to Abate the proceedings is hereby denied. Plaintiff shall take nothing by this action and the Defendant, State Farm Mutual Automobile Insurance Company, shall go hence without a day. The Court retains jurisdiction for the purpose of determining any motion by the Defendant to tax fees and costs.
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