21 Fla. L. Weekly Supp. 425c
Online Reference: FLWSUPP 2105LDICInsurance — Personal injury protection — Demand letter — Demand letters fail to satisfy condition precedent to suit where balance shown by statements attached to demand letters does not match balances demanded in letters and it is unclear what specific treatments, dates of treatment and charges are claimed by letters
PONTE VEDRA CHIROPRACTIC & PHYSICAL THERAPY, as assignee of LAHOMA DICKEY, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP10-1136, Division 66. January 14, 2014. Charles J. Tinlin, Judge. Counsel: Tristan Wolbers, Herssein Law Group, Tampa, for Defendant.
ORDER GRANTING USAA’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on USAA’s Motion for Final Summary Judgment (Invalid Pre-Suit Demand) pursuant to Rule 1.510, Florida Rules of Civil Procedure. The Court has reviewed and considered the motion and Plaintiff’s response thereto, as well as all affidavits and documents filed in support of Defendant’s motion and in opposition thereto. The Court has also heard and considered the argument of counsel for the parties and being otherwise fully advised in the premises, finds as follows:
Defendant, United Services Automobile Association (hereinafter “USAA”), argues that it is entitled to final summary judgment as a matter of law because Plaintiff failed to comply with the statutory conditions precedent mandated by Section 627.736(10)(b)(3), Florida Statutes. Specifically, USAA argues that Plaintiff’s pre-suit demand letter is invalid because: (1) Plaintiff failed to delineate which specific date(s) of service/CPT codes are at issue, (2) Plaintiff failed to provide notice to Defendant of the exact amount due and owing, (3) Plaintiff’s demand letter included sums already paid by Defendant, and (4) Plaintiff failed to enclose a valid Assignment of Rights. USAA also argues that Plaintiff’s pre-suit demand letter acts against public policy by failing to allow Defendant an opportunity to prevent litigation.
Plaintiff argues that the level of specificity the Defendant claims is necessary is virtually impossible for any plaintiff to provide and is not required by the statute. It argues that there is no language in section 627.736(10) requiring the medical provider to compute the exact amount owed or requiring that a demand letter reflect prior payments made by the insurer. Plaintiff contends that it is not reasonable to expect the provider to know the exact amount owed since said amount could vary amongst PIP applicants depending on the language of each individual policy.
Generally, a Motion for Summary Judgment must meet the strict procedural requirements enumerated in Rule 1.510, Fla. R. Civ. P. The requirements set forth therein are designed to protect the litigants’ constitutional right to a trial on the merits of a particular claim. Bifulco v. State Farm Mutual Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]. The Court may grant a motion for summary judgment if the pleadings, discovery, affidavits and other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “The party moving for summary judgment has the initial burden of demonstrating the nonexistence of material issues of fact; after the movant has tendered competent evidence supporting its motion, the burden shifts to the other party to come forward with opposing evidence to show a question of material fact exists.” Hicks v. Hoagland, 953 So. 2d 695, 697 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D909a](citing Carnes v. Fender, 936 So. 2d 11 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]). The trial judge must draw every inference or resolve every doubt in favor of the party opposing the motion. Petruska v. Smartparks-Silver Springs, Inc., 914 So. 2d 502, 504 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2614a]. Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Snow v. Byron, 580 So. 2d 238 (Fla. 5th DCA 1991).
Section 627.736(10), Florida Statutes states, in pertinent part:
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. 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 must state that it is a “demand letter under s. 627.736” and 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.
. . .
3. To the extent applicable. . .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.
Fla. Stat. § 627.736(10) (emphasis added).
Plaintiff sent USAA two separate demand letters pursuant to section 627.736(10), dated October 22, 2009 and January 12, 2010. The October letter states:
This claim is for unpaid benefits for dates of service 11/11/08 – 6/19/09 in the billed amount of $11,170.94 less payments received of $9,105.30, leaving a balance owed of $2,065.30, which is the amount demanded under this letter. Full payment under the policy is demanded (80% or 100%, per the policy requirements) along with statutory interest and penalties.
The January letter states:
This claim is for unpaid benefits for dates of service 11/11/08 – 6/19/09 in the billed amount of $11,170.94 less payments received of $9,105.30, leaving a balance owed of $2,065.64. PPO and other non-fee schedule reductions for those dates of service total $1,428.42, which is the amount demanded under this letter per the policy requirements. Full payment under the policy is demanded (80% or 100%, per the policy requirements) along with statutory interest and penalties. We do not accept any of the PPO reductions. All bills must be paid at the amount billed, or at the applicable fee schedule, per the statute.
Attached to each letter is a statement for services rendered between November 11, 2008 and September 30, 2009. The statements contain six columns showing the dates of treatment, the billing codes and description of services rendered, and the exact amount charged for the treatments. They also show some payments by “Insurance” and some cash payments. On each statement, above the first entry for June 26, 2009, is a line with a note “began billing Medicare Pt released from auto.”
In Plaintiff’s Amended Complaint, Plaintiff states this is an action for declaratory judgment and for breach of contract for overdue and unpaid No-Fault and Medical Payments Coverage benefits in the amount of $1,428.42. The first letter demands payment of $2,065.30. The second demand letter states that the balance owed is $2,065.64, but demands only $1,428.42 indicating this is the total for “PPO and other non-fee schedule reductions for those dates of service.”
The statements attached to the demand letters show a balance of $2,954.43 for the services rendered through June 19, 2009. Even taking into account payments made after June 19, 2009, for services rendered through that date, the statement balance does not match the balances in the demand letters. The statements reflect payments made on June 26, July 7, and July 23, totaling $870.79. Applying that total to the June 19, 2009 statement balance leaves a total balance of $2,083.64. This is $18.34 more than the balance stated in the October demand letter and $18.00 more than the balance stated in the January demand letter. Additionally, the actual amount demanded in the most recent letter is $1,428.42 which is different than the balance shown on the statement attached to that letter. Even reading the statement in conjunction with the Health Insurance Claim Forms that are part of the record in this case, and considering the amount demanded, it is unclear what specific treatments, dates of treatment, and charges are being claimed.
“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. . . .’ ” MRI Associates of America, LLC v. State Farm Fire and Casualty Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. “The statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits.” Id. As was found in Ponte Vedra Chiropractic Medicine & P.T. v. Progressive American Ins. Co., unless Plaintiff is claiming the amount set forth in the statement, more specificity is required. 11 Fla. L. Weekly Supp. 829a (Fla. St. Johns County Ct. July 8, 2004). “A running history of Plaintiff’s treatments is not sufficient.” Id. Accordingly, it is:
ORDERED AND ADJUDGED that:
Defendant’s Motion for Summary Final Judgment is GRANTED. This cause is DISMISSED WITHOUT PREJUDICE for failure to fulfill a condition precedent as required by statute.
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