22 Fla. L. Weekly Supp. 952a
Online Reference: FLWSUPP 2208THORInsurance — Personal injury protection — Demand letter — Sufficiency — Medical provider complied with requirements of section 627.736(10) y attaching itemized statement to demand letter — PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer — Insurer waived issue of defective demand letter by failing to raise issue before suit was filed
CHRISTOPHER LOWE HICKLIN, D.C., P.L., as assignee of, STEPHEN THORESEN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2013 SC 005162 NC. February 6, 2015. Honorable Phyllis R. Galen, Judge. Counsel: Anthony D. Barak, Law Offices of Barak & Goldberg, P.A., Lakewood Ranch, for Plaintiff. Amy D. Prevatt, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come to be heard by this Honorable Court on December 15, 2014 concerning Defendant’s (State Farm Mutual Automobile Insurance Company hereinafter referred to as “State Farm” or “Defendant”) Motion for Final Summary Judgment. The Court, having reviewed the motion, heard the arguments of counsel, and having reviewed the court file, including, but not limited to deposition transcripts, and being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
I. UNDISPUTED FACTS
This is a breach of contract action regarding personal injury protection (PIP) benefits. On January 4, 2012, Stephen Thoresen (hereinafter referred to as “the patient” or “Thoresen”) was involved in a motor vehicle accident, for which Defendant provided personal injury protection (PIP) coverage. After the accident, Thoresen sought treatment with Christopher Lowe Hicklin, D.C. (hereinafter referred to as “Hicklin” or “Plaintiff”) from January 31, 2012 through July 13, 2012.
On April 22, 2013, Plaintiff, through counsel, sent State Farm a “Written Notice of Intent to Initiate Litigation” pursuant to F.S. 627.736(10)(“demand letter”) since PIP benefits were denied as a result of an independent medical examination (IME). Pursuant to the Motion for Final Summary Judgment filed by Defendant and the deposition transcript filed with the Court of Defendant’s adjustor, Plaintiff’s demand letter included the assignment of benefits executed by the patient to Plaintiff and an itemized billing/payment ledger from Plaintiff.
Because State Farm failed to pay on the demand letter, Plaintiff filed the subject breach of contract lawsuit for denied 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 Thoresen.
Defendant served and filed its Motion for Final Summary Judgment. In its Motion, Defendant alleged that the demand letter Plaintiff served on State Farm is non-compliant with F.S. 627.736(10). Specifically, Defendant alleged the following:
· The demand letter fails to provide the specificity to “put the insurer on notice of a claim and to have the opportunity to know, from the demand letter, the exact amount of the overdue claim, and know that if that amount is paid, the claim will be resolve without litigation”;
· The ledger, which contained adjustments and alleged errors, is different from the amount listed in the demand letter thereby making the demand letter non-compliant; and
· Since Plaintiff’s demand letter is non-compliant, Plaintiff failed to comply with the condition precedent requirement of F.S. 627.736(10) to filing a PIP action.
Plaintiff contends that not only is it’s demand letter compliant with F.S. 627.736(10), but that Defendant waived any argument pertaining to the demand letter because Defendant failed to raise any defect in its demand letter response.
II. LEGAL ANALYSIS
Compliance of a demand letter under F.S. 627.736(10) is a statutory condition precedent requirement to filing a PIP action.
Florida Statute 627.736(10) reads as follows:
(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 Defendant’s assertions to the contrary, Plaintiff’s Notice of Intent to Initiate Litigation contains the required items listed above including, but not limited to, 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. There is no express requirement in F.S. 627.736(10) requiring a medical provider to compute the total amount owed. See Robert J. Indelicato, D.C. as assignee of Ruby Kish vs. State Farm et. al., 21 Fla. L. Weekly Supp. 184b (12th Judicial Circuit in and for Manatee County, 2013); citing EBM Internal Medicine v. State Farm Mutual et. al., 19 Fla. L. Weekly Supp. 382a (4th Judicial Circuit in and for Duval County, 2012).
Additionally, in Neurology Partners, P.A. et. al. v. State Farm et. al., 22 Fla. L. Weekly Supp. 101b (4th Judicial Circuit in and for Duval County, 2014), the Court found that the PIP statute does not require that the demand letter account for prior payments made by the insurer or attempt to state exact amount owed by insurer. By attaching the itemized statement to the demand letter, the medical provider has complied with the requirements of F.S. 627.736(10). Id. See also North Florida Chiro a/a/o Kenneth Brown v. State Farm et. al., 22 Fla. L. Weekly Supp. 266b (4th Judicial Circuit in and for Duval County, 2014)
Finally, in Neurology Partners, as in the present case, this Court agrees that once an insurance carrier sends a response and fails to take issue, with any specificity, on the alleged non-compliance with Plaintiff’s presuit demand letter, then the carrier cannot come back post-litigation and raise the issue for the first time once litigation is initiated. Id. Therefore, as in the present case, this Court finds that since Defendant failed to raise any objection in response to the demand letter prior to litigation, Defendant’s defense of non-compliance is now waived. See also Dejesus Chiropractic Center a/a/o Javad Azadi v. State Farm et. al., 19 Fla. L. Weekly Supp. 207a (11th Judicial Circuit in and for Miami-Dade County, 2011); See also Moore Chiropractic et. al. v. State Farm et. al., 22 Fla. L. Weekly Supp. 265b (4th Judicial Circuit in and for Clay County, 2014);
Based upon the foregoing, this Court finds that the Plaintiff complied with the condition precedent requirements of F.S. 627.736(10).
III. CONCLUSION
Based upon the foregoing, the Court finds that Plaintiff’s demand letter was in compliance with F.S. 627.736(10) and Defendant’s Motion for Final Summary Judgment is hereby DENIED.
The Court hereby reserves jurisdiction to consider any claims for attorneys’ fees and costs by Plaintiff.
