21 Fla. L. Weekly Supp. 927a
Online Reference: FLWSUPP 2109ROYInsurance — Personal injury protection — Demand letter — Medical provider’s failure to attach to demand letter back side of assignment of benefits that contained only signature of assignor is technical matter that did not prevent demand letter from substantially complying with statute — Further, insurer waived signature issue by failing to raise issue until after suit was filed
NEUROLOGY PARTNERS, P.A. D/B/A EMAS SPINE & BRAIN A/A/O SHERRY ROY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, (“STATE FARM”), Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-004785, Division MA (CC-N). June 4, 2014. Gary Flower, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. James C. Rinaman, III, James C. Rinaman, III and Associates, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO COMPLIANCE WITH F.S. 627.736 (10) “DEMAND LETTER”
THIS ACTION came before the Court on April 22, 2014 on the Defendant’s Motion for Summary Judgment on whether the Plaintiff properly complied with Florida Statute 627.736 (10) with respect to sending a compliant Pre-suit Demand Letter (“PDL”)1 Upon hearing argument of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
This is not a case involving whether the language of the Plaintiff’s assignment of benefits properly conveyed standing to the Plaintiff to bring this PIP suit. The Defendant takes no issue with the language of the assignment of benefits. The issue in this case is merely whether the Plaintiff’s failure to attach the back side of the single-page assignment of benefits form, which contained just the assignor’s signature, invalidates the Plaintiff’s PDL, thereby requiring the case to be dismissed for failure to comply with a condition precedent of F.S. 627.736(10). The Plaintiff’s arguments are: a) that the failure to copy and attach the back side of the assignment to the PDL was merely a clerical error and that the PDL substantially complies with the requirements of F.S. 627.736(10); b) nothing about the failure to attach the signature impeded the Defendant’s ability to review the PDL and decide whether it wanted to pay the amount sought; c) the Defendant waived the right to raise this defect since it never raised the issue until after the Defendant filed its Answer; and, d) the Defendant suffered no prejudice. The Defendant’s position is that failure to attach the back side of the assignment is not “substantial compliance” and that “strict compliance” is the proper standard when reviewing a PDL and that the failure to attach the signature prejudiced the Defendant.
This Court is guided by Patry v. Capps, 633 So.2d 9 (Fla. 1994), in which the Florida Supreme Court discussed the level of compliance necessary for a written notice of intent to initiate litigation. Although Patry involved a medical malpractice case, the theory behind the Court’s decision applies in a PIP context as well.2 The Supreme Court said strict compliance is not necessary when discussing the mode of service of the written notice under section 768.57(2).
As long as the legislative purposes of facilitating the early resolution of claims is met, “there is no reason to construe the provision in a manner that results in an unreasonable denial of access to courts” Patry, at 11.
“Strict compliance with statutory mode of service is unnecessary for notice of intent to file medical malpractice action” Patry, at 12.
“Rule 1.650 was not intended to somehow elevate those provisions of the statute that would otherwise he considered technical matters of form, with which strict compliance is unnecessary” Patry, at 13.
In this case, the requisite information in order for State Farm to evaluate the claim was all contained in the PDL sent by the Plaintiff. The Defendant attempts to limit Patry to its facts and states that “mode of service” of a PDL is all that the Supreme Court was addressing in Patry. However, the holding in Patry is not so limited and, indeed, speaks to the level of compliance with PDL’s in general. The Court states “we have recently emphasized that when possible the presuit notice and screening statute should he construed in a manner that favors access to courts” Patry at 13, citing Weinstock v. Groth, 629 So.2d 835 (Fla. 1993). Like in a medical malpractice case, the PDL in a PIP case has a similar legislative goal of giving the insurance carrier an opportunity to review a claim for thirty days before a medical provider can file suit. The requirements, pursuant to F.S. 627.736(10), are that the medical provider provide the carrier with: a) the identity that it is a demand letter under F.S. 627.736(10); b) the name of the insured upon which benefits are being sought; c) the claim or policy number of the original claim; d) an itemized statement; and, e) a copy of the assignment. In this case, all of the necessary items were included in the PDL for the carrier to evaluate the claim. There was nothing about the signature of the assignor that would have affected the Defendant’s ability to evaluate the claim based on all the other necessary information that was included in the PDL. Moreover, this Court can discern that the Supreme Court did not mean to limit its holding to just the “mode of mailing” because in the very first paragraph of Patry, the Supreme Court states that it rephrased the question of great public importance from:
WHETHER THE REQUIREMENT IN A MEDICAL MALPRACTICE ACTION THAT NOTICE BE GIVEN BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IS (1) A SUBSTANTIVE ELEMENT OF THE STATUTORY TORT, OR (2) A PROCEDURAL REQUIREMENT THAT CAN BE DISREGARDED BY THE TRIAL COURT WHEN THE DEFENDANT RECEIVES ACTUAL WRITTEN NOTICE IN A TIMELY MANNER THAT RESULTS IN NO PREJUDICE.
To a much broader query of:
WHETHER THE ACKNOWLEDGED RECEIPT OF TIMELY WRITTEN NOTICE OF INTENT TO INITIATE LITIGATION FOR MEDICAL MALPRACTICE THAT RESULTS IN NO PREJUDICE TO THE DEFENDANT IS SUFFICIENT NOTICE UNDER SECTION 768.57(2). FLORIDA STATUTES (1987)(CURRENT SECTION 766.106(2) FLORIDA STATUTES(1993). Patry, at 10.
The rewording of the question of great public importance focuses the issue on the level of compliance, which is “substantial,” not “strict,” and whether there was prejudice to the Defendant. The Defendant claims, in oral argument, that it was prejudiced because it could somehow make gratuitous payments without the assignor’s signature, but this issue could have been easily addressed by the Defendant prior to suit in its PDL response, and it opted not to do so. That option constitutes a waiver. The Defendant never placed the Plaintiff on notice, with any specificity, of the Defendant taking issue with the assignment of benefits. Further, this Court notes that the Defendant had no prejudice because, as the Defendant concedes in oral argument, it paid nothing in response to PDL anyway. As the Supreme Court stated, “there is no reason to construe the provision in a manner that results in an unreasonable denial of access to courts” Patry at 11. The Defendant’s contention of prejudice is, at best, speculative. The denial of access to courts by the Plaintiff, is real.
The Plaintiff also relies on United Automobile Ins. Co. v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (Fla. 11th Cir. App., November 8, 2010), in which the 11th Circuit sitting in its appellate capacity found the provider’s demand letter satisfied “the intent of the statute” despite the fact that the demand letter failed to attach the assignment of benefits at all or indicate whether payment should be made to the provider or the insured. The Court found that there was substantial compliance and, also, that the insurer waived the issue of defective demand letter by failing to raise the issue until after suit was filed by the insured. In our case, the “defect” is less egregious than that in Perez and the insurer never complained about the signature issue until after suit was filed.
Like the Supreme Court in Patry, this Court finds that the deficiency claimed by the Defendant is merely a technical matter and that the Plaintiff substantially complied with the PDL requirement of F.S. 627.736(10).
Therefore the Defendant’s Motion for Summary Judgment is DENIED.
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1The Plaintiff also filed a Motion for Summary Judgment as to compliance with F.S. 627.736(10), however, both sides agreed that ruling on the Defendant’s motion would be dispositive of the issue.
2Also see, Ultra Care & Diagnostic a/a/o Yania Rodriguez v. MGA Insurance Company, 20 Fla. L. Weekly Supp. 185b (Order Miami-Dade County Judge Teretha L. Thomas, October 1, 2012)(finding “substantial compliance” not “strict compliance” is the proper standard in a PIP context with regard to PDL)
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