21 Fla. L. Weekly Supp. 184b
Online Reference: FLWSUPP 2102KISHInsurance — Personal injury protection — Demand letter — No merit to contention that insurer waived affirmative defense of insufficient pre-suit demand letter where insurer asserted defense with sufficient particularity and did not waive it in answers to discovery — Demand letter that contained itemized statement of exact amount due for each date of service and type of benefits claimed to be due was sufficient; statute does not require medical provider to compute total of amounts owed
ROBERT J. INDELICATO, D.C., as assignee of RUBY KISH, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 12th Judicial Circuit in and for Manatee County. Case No. 2011 CC 003758. October 30, 2013. Honorable Mark D. Singer, Judge. Counsel: Anthony D. Barak, Barak & Goldberg, P.A., Lakewood Ranch, for Plaintiff. Robert H. Oxendine, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORFULL AND FINAL SUMMARY JUDGMENT
THIS CAUSE, having come to be heard by this Honorable Court on August 12, 2013 concerning Defendant’s (State Farm Mutual Automobile Insurance Company hereinafter referred to as “State Farm” or “Defendant”) Motion for Full and Final Summary Judgment. The Court, having reviewed the motion, heard the arguments of counsel, and having reviewed the court file, and being fully advised in the premises, does hereby ORDER AND ADJUDGED as follows:
I. UNDISPUTED FACTS
This is a breach of contract action regarding personal injury protection (PIP) benefits. On September 4, 2010, Ruby Kish (hereinafter referred to as “the patient”) was involved in a motor vehicle accident, for which Defendant provided personal injury protection (PIP) coverage. As a result of the injuries the patient sustained in the subject motor vehicle accident, she sought treatment with Robert J. Indelicato, D.C. (hereinafter referred to as “Dr. Indelicato” or “Plaintiff”) on September 9, 2010. Ms. Kish continued care with Dr. Indelicato through February 22, 2011.
At Ms. Kish’s initial visit with Dr. Indelicato, she executed an assignment of benefits, which is attached to Naomi Smart’s Affidavit. Exhibit “A” Affidavit of Naomi Smart. During the time that Ms. Kish was treating with Dr. Indelicato, State Farm discontinued her benefits based upon an independent medical examination (IME).
Accordingly, on June 1, 2011, Plaintiff, through counsel, sent State Farm a “Written Notice of Intent to Initiate Litigation” pursuant to F.S. 627.736(10)(“Demand letter”). Exhibit “A” Affidavit of Naomi Smart. The demand letter included an assignment of benefits executed by Ruby Kish to Plaintiff, and an itemized billing/payment ledger from Plaintiff. Since State Farm failed to pay the Demand letter within 30 days of receipt as required by Section 627.736(10), Florida Statutes, Plaintiff filed the subject breach of contract lawsuit on or about September 1, 2011, for denied Personal Injury Protection Benefits (PIP) benefits, overdue PIP benefits, overdue medpay benefits, interest on denied and overdue PIP benefits and medpay benefits, and interest on late payment of PIP benefits due pursuant to a policy of insurance (contract) issued by Defendant that covered Ruby Kish. Paragraph 1, Plaintiff’s complaint.
In paragraph 15 of Plaintiff’s complaint, Plaintiff alleges the following:
“RUBY KISH, and Plaintiff have performed all conditions precedent necessary to entitle Plaintiff, as assignee of RUBY KISH, to recover benefits as provided by the above insurance contract, including but not limited to, notifying Defendant in writing of a covered loss and of the amount of that covered loss, and filing a written notice of intent to initiate litigation pursuant to Florida Statute §627.736.” Paragraph 15, Plaintiff’s complaint. .
In response to the complaint, Defendant filed an answer and affirmative defenses on or about October 17, 2011. Defendant answered paragraph “15” above by merely stating “Denied.” Paragraph 15, Defendant’s answer.
Defendant’s Ninth Affirmative Defense specifically alleges the following:
“Defendant denies compliance with conditions precedent to filing suit in this action because Plaintiff has failed to comply with Florida Statute 627.736(10). To the extent that suit is for any medical payments coverage, Plaintiff has failed to comply with the insurance policy contract provision requiring pre-suit notice of intent to initiate litigation.” Defendant’s Ninth Affirmative Defense contained in Defendant’s answer and affirmative defenses.
Plaintiff propounded discovery to Defendant, which was served with the summons and complaint. Plaintiff’s Interrogatory Number Twelve states as follows:
“If the Defendant is alleging the Plaintiff does not have standing or if the Defendant is alleging Plaintiff, the patient or the insured have failed to comply with any conditions precedent which would be necessary to be performed prior to the filing of this PIP suit please state with specificity all facts that would support this defense and the name and address of the person who will testify to this allegation.” Plaintiff’s Interrogatory number 12 to Defendant filed in Opposition to Defendant’s Motion for Full and Final Summary Judgment.
Defendant filed verified answers to Plaintiff’s Interrogatories, and in its response to Interrogatory Number Twelve listed above, Defendant stated the following:
“Defendant waives any affirmative defense as it pertains standing . . .” Defendant’s verified answer to interrogatory number 12, which were filed in Opposition to Defendant’s Motion for Full and Final Summary Judgment.
Finally, on or about April 17, 2013, Defendant served and filed its Motion for Full and Final Summary Judgment alleging that the demand letter Plaintiff submitted to State Farm does not comply with Florida Statute Section 627.736(10) in that it fails to provide the necessary specificity required by the Statute. Defendant’s Motion for Final and Final Summary Judgment, paragraph 5. Defendant’s main contention in this case is that the demand letter served by Plaintiff is non-compliant and Defendant should be entitled to full and final summary judgment as a result. It is Plaintiff’s contention that not only is Plaintiff’s demand letter compliant with Section 627.736(10), Florida Statutes, but that Defendant waived any argument as it pertains to the demand letter because Defendant waived standing pursuant to its answer to interrogatory 12.
II. LEGAL ANALYSISWaiver of Ninth Affirmative Defense
The Court rejects Plaintiff’s contention that the Defendant waived its Ninth Affirmative Defense as it pertains to insufficient pre-suit notice and finds that the Ninth Affirmative Defense was specific and contained sufficient particularity to place the Plaintiff and the Court on notice of its defense of failure of Plaintiff to comply with Presuit notice requirements. While the Defendant in its Answer to Interrogatory Number Twelve waived any defense pertaining to Plaintiff’s legal standing to bring the complaint by virtue of an assignment, it did not specifically waive its assertion the demand letter was not in compliance with Chapter 627, Florida Statutes.1Compliance with Presuit requirements
In the present case, compliance of a demand letter under Section 627.736(10), Florida Statutes, is a statutory presuit condition precedent requirement for the filing of a PIP suit. The Defendant contends that the form of the Notice of Intent to Initiate Litigation is statutorily noncompliant.
Section 627.736(10), Florida Statutes provides:
“(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(10)” 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.
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. 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.”
Despite the Defendant’s assertions to the contrary, the Plaintiff Notice of Intent to Initiate Litigation contains an itemized statement specifying each exact amount due for each date of treatment, service, or accommodation and the type of benefit claimed to be due. While the ledger sheet made part of the notice contains more than that which is statutorily required, (amounts paid and credited and a calculation of total amount due and payable), the statute does not require anything more.2 There is no express requirement in Section 627.736(10), Florida Statutes, which requires a medical provider to compute the total of amounts owed.
In EBM Internal Medicine v. State Farm Mutual et. al., 19 Fla. L. Weekly Supp. 410a (4th Judicial Circuit in and for Duval County, 2012), the Honorable Gary Flowers correctly stated and explained, as follows:
“. . .The Court notes that there is no language contained in Section 627.736(10) that requires the medical provider to compute the exact amount owed or that a Demand Letter reflect prior payments made by the insurer. In fact, the Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a MedPay provision on a policy (as well as other issues) are unknown to the medical provider, knowledge as to the exact amount owed is virtually impossible. A strict construction of the statute only says that a pre-suit demand must specify “[t]o the extent applicable . . . an itemized statement specifying each exact amount . . .”. With the various factors that must be considered by the carrier when determining the exact amount to pay on a claim, and the fact that this information is readily available to the carrier and virtually never readily available to the medical provider submitting a claim, 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). Further, the Defendant fails to convince this Court of the consequence of failing to list the exact amount owed. This Court could surmise endless scenarios where the provider (or claimant) would need to know certain information in order to properly compute the exact amount owed based on a multitude of factors, including the ones listed above. (footnote omitted) Additionally, requiring the medical provider to speculate as to the exact amount owed is inconsistent with the legislative intent of § 627.736(10), which is to provide “swift and virtually automatic payments” of PIP benefits. . . . .” See also A.C. Rehabilitation Center a/a/o Rivero v. State Farm, 19 Fla. L. Weekly Supp. 890a (11th Judicial Circuit in and for Miami-Dade County, 2012) (Demand letter was not deficient for failing to state exact amount owed or account for prior payments by insurer — Attachment of health insurance claim forms satisfied requirement to provide itemized statement); Kadosh Medical Services, Inc. a/a/o Perez v. State Farm, 19 Fla. L. Weekly Supp. 207b (11th Judicial Circuit in and for Miami-Dade County, 2011); First Coast Medical Center a/a/o Derouen v. State Farm, 17 Fla. L. Weekly Supp. 118a (4th Judicial Circuit in and for Duval County, 2009) (Demand letter is sufficient where, although letter stated differing amounts claimed, insurer’s correspondence demonstrates that it was provided information it needed to know exact amount of overdue claim and amount required to resolve the claim without litigation); Xtreme Chiropratic & Rehab, Inc. v. State Farm Mutual Automobile Insurance Company, 20 Fla. L. Weekly Supp. 620a (17th Judicial Circuit in and for Broward County, 2013);
III. CONCLUSION
The Court finds that Plaintiff’s demand letter was in compliance with Section 627.736 (10), Florida Statutes, and Defendant’s Motion for Full and Final Summary Judgment is hereby DENIED.
__________________
1The Plaintiff asserts that the Defendant did not otherwise answer Interrogatory Number Twelve. Indeed the answer to the interrogatory is incomplete, however, the Plaintiff did not file any motions directed to the incompleteness of the Defendant’s answers, nor did the Plaintiff file any motion to strike affirmative defenses.
2The Court was made aware of the calculation discrepancy between the total on the ledger sheet and page 1 of the Notice of Intent. But, as stated above, the statute does not require an exact total of the amount claimed to be due. A total included in the Notice or attached ledger sheet, even if miscalculated of misstated, as in this case, is immaterial to the issue of whether or not the Notice is compliant with the statutory requirements.
* * *
