22 Fla. L. Weekly Supp. 747a
Online Reference: FLWSUPP 2206MAITInsurance — Personal injury protection — Delay in payment — Request for information or documentation — Where medical provider made no response to insurer’s pre-suit request for information and documentation relating to treatment of insured, claim was not overdue at time demand letter was issued, and suit is premature
HOLLYWOOD INJURY REHABILITATION CENTER, INC., (ALYSHA MAITLAND), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 13-000240 COSO 60. October 8, 2014. Honorable Ian Richards, Judge. Counsel: Todd Landau and Joseph A. Wolf, Landau & Associates, P.A., Hallandale, for Plaintiff. Max M. Nelson, Herssein Law Group, North Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT BASED ONPLAINTIFF’S FAILURE TO RESPOND TO PRE-SUITREQUESTS FOR INFORMATION PURSUANTTO FLA. STAT. § 627.736(6)(b)
THIS CAUSE came before the Court on August 28, 2014 and September 26, 2014 for hearing on USAA’s Motion for Summary Judgment Regarding Fla. Stat. § 627.736(6)(b) Request Letters, which was filed on or around June 27, 2013. The Court having reviewed the briefs, the Court file, the relevant legal authorities, having heard argument of counsel, and having been sufficiently advised in the premises, the Court finds as follows:
FACTS AND PROCEDURAL HISTORY
On January 9, 2013, Plaintiff Hollywood Injury Rehabilitation filed this PIP Lawsuit alleging that Plaintiff was owed reimbursement for treatment allegedly rendered to its patient, and USAA’s insured, Alysha Maitland, who reportedly was involved in a motor vehicle collision on July 29, 2011. USAA never paid Plaintiff in connection with this claim. Plaintiff initially filed suit against USAA Casualty Insurance Company, and upon receiving notification that Alysha Maitland’s actual insurer was United Services Automobile Association (“USAA”), obtained an Order granting its Motion to Amend naming USAA as the Defendant. On June 6, 2013, USAA filed its Answer and Affirmative Defenses to Plaintiff’s Amended Complaint, raising as its Fifth Affirmative Defense that “There are no amounts due and owing from USAA to the Plaintiff for the dates of service July 30, 2011 through December 27, 2011, and the lawsuit brought by Plaintiff is premature as Plaintiff failed to respond to USAA’s requests for additional information pursuant to Florida Statute §627.736(6)(b).”
USAA began receiving Plaintiff’s bills in connection with this claim on August 31, 2011. Within thirty days of receipt of Plaintiff’s bills, USAA sent Plaintiff a request for information pursuant to Florida Statute §627.736(6)(b) on September 21, 2011. The request sought, inter alia, 1) a sworn statement that all treatment and services rendered to Ms. Maitland were reasonable and necessary; 2) therapy records and identification of the individuals that performed therapeutic services; 3) details regarding the equipment used in connection to mechanical traction, electro-stimulation, and hydro-therapy CPT Codes; 4) further information regarding the therapeutic exercise techniques that were employed and identification of the individuals who rendered this treatment and their qualifications; and 5) a copy of the sign-in sheets, signed treatment notes, and other materials verifying that the billed services were rendered. Plaintiff was notified that “payment for the claims at issue is not past due until ten (10) days after receipt of the requested documentation.” Plaintiff was also expressly notified that the request was made “Pursuant to Florida Statute 627.736(6)(b).” After no response, USAA sent a follow-up request on October 20, 2011. After no response, USAA sent another follow-up request on November 20, 2011. This letter notified Plaintiff that “We will be unable to consider payment of any bills submitted for [patient Maitland] until the requested information is provided.”
The fact that these requests were sent to Plaintiff, and sent timely, is supported by the Affidavit of USAA’s Adjuster Lisa Crowell, which was filed and served on June 27, 2013 (Exhibit E to the Motion for Summary Judgment), her deposition transcript filed on August 25, 2014, and the Affidavit of Robert Childers in Support of USAA’s Motion for Summary Judgment Re: USAA’s §627.736(6)(b) Informational Request Letters, and Mailing of Same, filed and served on January 24, 2014. Mr. Childers states in his affidavit that he personally drafted and put these 6(b) requests in the mail to Plaintiff to its address in Hollywood, Florida within thirty days of the receipt of Plaintiff’s initial bills in connection with this claim. The evidence presented by Plaintiff did not create a genuine issue of material fact given that Dr. Bonnardel’s affidavit contained inconsistencies when compared with his filed deposition testimony. Instead of providing the information requested by USAA (through Mr. Childers’ 6(b) requests), Plaintiff sent USAA a Pre-Suit Demand Letter dated November 6, 2012, and subsequently and prematurely filed this suit.
RATIONALE AND AUTHORITIES IN SUPPORT OF RULING
Final summary judgment is granted in favor of Defendant USAA, as there are no genuine issues of material fact, and USAA is entitled to a judgment as a matter of law. An insurer is authorized and entitled to conduct a pre-suit investigation of a claim, and if it sends a medical provider a request for information pursuant to Fla. Stat. § 627.736(6)(b) within thirty days of the receipt of Plaintiff’s bills, and the request is within the proper scope, a Plaintiff’s claim never becomes “overdue.” Fla. Stat. § 627.736(6)(b) (2011).1 When the claim is not “overdue,” a medical provider may not serve a demand letter. Fla. Stat. § 627.736(10)(a) (2011). Without serving a valid demand letter, a Plaintiff may not file suit, as a demand letter is a statutorily required condition precedent to filing suit for PIP benefits. Fla. Stat. § 627.736(10)(a) (2011).
Based on the evidence presented through the depositions and affidavits on file, the Court finds that 1) the pre-suit requests for documentation from USAA to Plaintiff were timely sent to Plaintiff at the proper address; 2) the requests were within the proper subject matter scope, as they sought clarification concerning Plaintiff’s treatment of USAA’s insured; and 3) Plaintiff did not respond to the requests, and instead served a demand letter and filed suit.
The requests at issue here, for sworn statements regarding medical necessity, information regarding therapy techniques and medical equipment, and the identification of medical professionals and their credentials, were within the proper scope, as they related to the treatment of the patient. Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So.2d 981, 984-85 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2705a]. In Kaminester, the Fourth District Court of Appeal noted that “Section 627.736(6)(b) provides for informal discovery from the provider to the PIP insurer without resort to litigation” and that “an insurer has a right to learn information about an insured’s treatment and the costs of such treatment.” Moreover, Section 627.736(6)(b), by its plain terms, “authorizes the discovery of ‘facts,’ not merely discovery of documents.”
Applying the Fourth District’s ruling in Kaminester, the court in Wellington Chiropractic Center Of Palm Beach, Inc. v. Nationwide Mutual Insurance Company, 11 Fla. L. Weekly Supp. 929b (15th Cir. Cty. Ct. Aug. 2004) determined that a request analogous to the one here, for details on “therapeutic activities . . . falls within the scope of information a carrier can request under F.S. 627.736(6)(b).” See id. (citing Kaminester, 775 So. 2d at 984-85). As here, and in granting the insurer’s motion for final summary judgment, the Wellington Chiro. court found that “No medical records or other documents were produced by plaintiff in response to [the insurer’s] inquiry prior to the service of plaintiff’s pre-suit demand letter.” Wellington Chiro., 11 Fla. L. Weekly Supp. at 929b. This is impermissible, and warrants summary judgment because “To allow a provider to respond to a request for information in an indirect, ambiguous manner, or to do so by omission, would completely deflect and defeat the intent and purpose of the statute and its clear cut deadlines and requirements.” Id. “Because plaintiff did not provide a legally sufficient response to [the insurer’s] timely request for information before filing suit, this claim is premature and [the insurer’s] motion for summary judgment is granted.” Id.
The Court in Professional Medical Group, Inc. (A/A/O Jurden J. Ugalde) v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 1000b (11th Cir. Cty. Ct. July 2006) noted that “Florida Court have consistently granted summary judgment in the insurer’s favor when an insurer requests additional information or documentation to support the treatment.” When these is no response to such a request, “the lawsuit [is] premature.” This opinion also notes that the Wellington Chiro. court “dispelled two [common plaintiff] arguments: . . . first, that the records provided with the initial bill should be sufficient and that the Plaintiff [is not] required to submit additional documentation . . . and second, that any demand letter by implication was a response” to the request. Id. “627.736(b) requires a provider to directly respond to timely requests for more information or documentation and . . . the provider may not do so my omission or implication.” Id. Here, Plaintiff never responded to USAA’s timely and proper pre-suit requests for information and documentation which related to the Plaintiff’s treatment of USAA’s insured.
Accordingly, for the reasons stated above, it is hereby
ORDERED and ADJUDGED that USAA’s Motion for Final Summary Judgment is hereby GRANTED. This case is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. Defendant is the prevailing party in this action. Accordingly, the Court RESERVES jurisdiction to determine attorney’s fees and costs owed to Defendant.
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1Florida Statute §627.736(6)(b) (2011) provides that:
“Every . . . clinic . . . shall, if requested to do so by the insurer against whom the claim has been made, furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment; provided that this shall not limit the introduction of evidence at trial . . . If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. For purposes of this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph.”
