22 Fla. L. Weekly Supp. 849a
Online Reference: FLWSUPP 2207WOJEInsurance — Personal injury protection — Demand letter that failed to delineate CPT codes at issue, alleged billed amounts and dates of services that were incorrect and differed from entries on attached patient ledger, and failed to accurately account for payments by insurer does not satisfy condition precedent to PIP suit
MCNAMARA CHIROPRACTIC CENTER P A (PATIENT NICHOLE WOJENSKI), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11 12781 CONO 72. December 10, 2014. Honorable Jill Levy, Judge. Counsel: Chad Christensen, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Stephen G. Mellor, Roig Lawyers, Deerfield Beach, for Defendant.
FINAL JUDGMENT FOR THE DEFENDANT
THIS CAUSE having come before the Court for hearing on November 12, 2014 on Defendant’s Motion for Final Summary Judgment and the Court having reviewed the Motion and supporting affidavits; the entire Court file; and reviewing the relevant legal authorities; having heard arguments by Counsel; having made a thorough review of the matters filed on record; and having been otherwise fully advised in the premises, it is hereby
ORDER AND ADJUDGED:Facts
This is an action by the Plaintiff, McNamara Chiropractic Center P.A. as assignee of Nichole Wojenski (herein after referred to as “McNamara” or Plaintiff”) to recover alleged overdue No-Fault benefits from the Defendant, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm” or “Defendant”). Specifically, the Plaintiff, McNamara rendered medical treatment and/or services to the patient/insured, Nichole Wojenski for injuries she received in an automobile accident on February 4, 2010.
At the time of the accident, Nichole Wojenski was covered under a policy of insurance which was issued by the Defendant, STATE FARM which provided personal injury protection (“PIP”) benefits up to $10,000.00 and medical payments coverage (“MedPay”) benefits up to $20,000.00.
On July 8, 2011, the Plaintiff, McNamara, through counsel, sent a pre-suit demand letter to the Defendant, STATE FARM requesting alleged overdue PIP benefits under §627.736(10), Florida Statutes, for medical treatment and/or services rendered to Nichole Wojenski in the amount of $4,301.64 for dates of service February 8, 2010 through June 3, 2010 which was listed on the demand letter as being calculated based on the following: “Total billed: $5,665.00 billed x 80%; claimable benefits $4,532.00; insurance company paid $230.36”. However, State Farm received bills from Plaintiff for dates of service February 8, 2010 through June 3, 2010 in the amount of $5,225.00 and not $5,665.00 as alleged in Plaintiff’s demand letter.
Attached to this demand letter was a purported patient ledger which listed medical services being rendered in this claim to Nichole Wojenski for dates of service February 8 2010 to April 1, 2011 and billed in the amount of $5,665.00. Moreover, while dates of service March 18, 2011 through April 1, 2011 were never listed in the demand letter as being due and owing, the billed amounts for these specific dates of service were listed as being due and owing and were included as services rendered in the attached patient ledger. Additionally, the demand letter failed to accurately take into account the proper amount of payments made by State Farm to Plaintiff and the attached patient ledger failed to reference any prior payments by State Farm or explain how Plaintiff arrived at its payment amount of $230.36. That prior to receiving this demand letter, State Farm made PIP and MedPay payments in the amount of $4,670.96 to Plaintiff for dates of service February 8, 2010 through June 3, 2010 and not $230.36 as alleged by the Plaintiff in its demand letter. Additionally, State Farm made PIP and MedPay payments in the amount of $5,074.08 to Plaintiff for dates of service February 8, 2010 through April 1, 2011, which are the dates of service included in the attached patient ledger. State Farm did not receive any additional pre-suit demand letters from Plaintiff, McNamara before or after receiving the demand letter dated July 8, 2011 and before the filing of the instant lawsuit.
Thereafter, the Plaintiff filed the instant lawsuit alleging in its Complaint that damages were more than $2,501.00 but does not exceed $5,000.00. Additionally, the Plaintiff alleged throughout the Complaint that the Defendant issued a policy of insurance which would pay for “Personal Injury Protection Benefits and/or Medical Payments Benefits”. The Defendant listed as an Affirmative Defense in response to Plaintiff’s Complaint that the Plaintiff’s pre-suit demand letter failed to comply with Florida Statute 627.736(10) because, among other things, it failed to “state with specificity” or include an “itemized statement specifying each exact amount . . . and the type of benefits claimed to be due.”
During the course of this litigation, the Defendant took the deposition of the Plaintiff’s corporate representative and the patient’s treating physician, Carol McNamara Krauss, DC on October 14, 2012. During this deposition, Dr. Krauss stated that the dates of service at issues in this case were from February 8, 2010 through April 1, 2011 and not February 8, 2010 through June 3, 2010 and that she was fully aware that there was MedPay on the policy. Additionally, Dr. Krauss testified that she had mistakenly billed CPT code 98942 for dates of service March 18, 2011, March 23, 2011 and April 1, 2011 in the amount of $70.00 for each service when in fact she should have billed CPT code 98941 which is billed in the amount of $60.00. Moreover, State Farm had paid the full $70.00 for CPT code 98942 and these services were listed in the patient ledger attached to the demand letter. However, these services were not listed as being due and owing in the actual demand letter.
On July 18, 2014, the Defendant served a Second Request for Admissions which was specifically related to Plaintiff’s demand letter not complying with Fla. Stat. 627.736(10). However, the Plaintiff, McNamara failed to respond to this Second Requests for Admissions.
On August 1, 2014, the Plaintiff filed a Request for Abatement of this lawsuit based on its own allegations that its lawsuit was premature and that it required the abatement in order to serve another demand letter on the Defendant in order to comply with Fla. Stat 627.736(10). On August 27, 2014, this Court denied Plaintiff’s Request for Abatement at the case management conference.
Defendant’s Argument
The Defendant, State Farm first argues that it has met its obligations under the PIP Statute and policy of insurance when it paid more than a reasonable amount to the Plaintiff for the alleged services rendered in this claim. State Farm paid $4,670.96 in PIP and MedPay benefits for dates of service February 8, 2010 through June 3, 2010 and $5,074.08 in PIP and MedPay benefits for dates of service February 8, 2010 through April 1, 2011. As such, State Farm argues that it has paid more than what the Plaintiff is requesting in the demand letter of $4,301.64.
Notwithstanding, State Farm argues that Plaintiff’s demand letter failed to comply with Fla. Stat. 627.736(10) as it failed to delineate which specific CPT codes are at issue; that the alleged billed amount on the demand letter and the dates of service associated with that amount are different than that which was actually billed for those dates of service; the dates of service listed on the actual demand letter as being due and owing are different than those listed in the attached patient ledger; and that the Plaintiff failed to include the correct amount paid by State Farm for these same dates of service. Additionally State Farm cannot determine how the Plaintiff determined in its demand letter that $230.36 was the amount paid by State Farm.
Furthermore, the Plaintiff, through the deposition testimony of Dr. Krauss, admitted that she mistakenly billed for CPT code 98942 in the amount of $70.00 when in fact they should have billed for CPT code 98941 in the amount for $60.00 for three dates of service. Although these dates of service were only listed in the patient ledger and not the demand letter as being due and owing, it was the Defendant’s argument at the hearing that the Plaintiff had either billed for services not rendered or overbilled the Defendant for these services.
Finally, the Defendant, State Farm argues that the Plaintiff failed to timely respond to its Second Request for Admissions regarding the Plaintiff’s demand letter not complying with Fla. Stat. 627.736(10) which was propounded on the Plaintiff on July 18, 2014. Although the Plaintiff filed a Motion for Extension of Time to Respond to these Request for Admissions on August 15, 2014, it never set this Motion for hearing within the allowed time frame under the Court’s first case management order on July 15, 2014 and failed to provide responses within 15-days as was ordered by the Court as part of the second case management order on August 27, 2014. As such, those Requests for Admissions are deemed admitted under FRCP 1.370.
Plaintiff’s Argument
The Plaintiff, McNamara argues that it filed a Reply to Defendant’s Affirmative Defenses on March 23, 2012 that asserted waiver and estoppel. During the hearing Plaintiff argued that the Complaint was for PIP and MedPay benefits but that State Farm waived the Affirmative Defense as to failure to comply with a condition precedent regarding MedPay. Moreover, that State Farm’s argument that it had paid more than what was being requested in the demand letter is misplaced as these were both PIP and MedPay payments and the Plaintiff was only requesting PIP payments in the demand letter. Thus, State Farm should have only applied the PIP payments and not the MedPay payments which would have left an outstanding PIP balance. Additionally, the Plaintiff argues that since the Defendant’s Affirmative Defense did not deny that Plaintiff failed to comply with a condition precedent with specificity and with particularity, as is required under FRCP 1.120(c), regarding the cause of action for breach of contract pertaining to MedPay benefits, then a partial summary judgment may only be granted regarding the PIP benefits and that the MedPay portion of the Complaint should remain pending.
Moreover, the Plaintiff relied on testimony from the State Farm Litigation Adjuster, Frank Lavergne that all bills were paid correctly and that at this time, no more payment are to be made. As such, there was also an issue of fact as to waiver and estoppel preventing summary judgment based on this testimony. Finally, the Plaintiff argues that if the Court finds that the demand letter was not compliant then a dismissal without prejudice is the appropriate action as the Plaintiff would still have time to comply with the pre-suit notice requirements.Findings of Law
Florida Statute, 627.736(10), states in pertinent part:
10) DEMAND LETTER
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. 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 required shall state that it is a “demand letter under s. 627.736(10)” and shall 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 . . . Id.
Before a Plaintiff may file suit for a PIP claim, it must first give the Defendant written notice of an intent to initiate litigation in the form of a pre-suit demand letter. The letter “shall state with specificity” an “itemized statement specifying each exact amount” due. See Id. Florida courts have held that this language is unambiguous and places the burden upon the Plaintiff to fulfill the requirements outlined. MRI Associates of Am., LLC (Ebba Register) v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b], reh’g denied (June 24, 2011). Thus, in interpreting the language of section 627.736, Florida Statutes, trial courts across the State have imposed a duty on medical care providers to specify the proper compensable amount owed by insurers in order to satisfy the requirements on the Statute. Id. However an insurer is not properly placed on notice if the wrong amount is stated in the demand letter. See Id.; see also Wide Open MRI v. Mercury Ins. Group, 16 Fla. L. Weekly Supp. 513b (Fla. 17th Cir. Cty. Ct. March 13, 2009).
Courts have also held that the specifications of §627.736(10), Fla. Stat [previously §627.736(11)], must be strictly construed. See Chambers Medical Group, Inc. (a/a/o Marie St. Hillare) v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a Circuit Court, (13th Jud. Cir. Cty. Ct., December 1, 2006); MRI Associates of Am., LLC (Ebba Register), 61 So.3d at 465, citing to Fountain Imaging of West Palm Beach, LLC v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (15th Jud. Cir. Cty. Ct. March 30, 2007). A strict compliance with the notice requirements is required to effect the purpose of the statute. See Chambers Medical Group, Inc. (a/a/a Marie Hillare), 14 Fla. L. Weekly Supp. 207a. A “substantial compliance” standard would trigger significant litigation as to sufficiency of the papers attached to a demand letter, the result of which would be that payment of claims would cease to be automatic, and providers would be relieved of their obligation under the statute. Id. Inaccurate, misleading, illegible, or stale information contained in a demand does not strictly comply with the statutory requirement. Id. A demand letter that stated a total amount billed and did not account for prior payments by insurer did not satisfy the statutory condition precedent. Venus Health Ctr. (a/a/o Joaly Rojas) v. State Farm Fire and Cas. Co., 21 Fla. L. Weekly Supp. 496a (Fla. 11th Jud. Cir., [Appellate-Civil] Miami-Dade County, March 13, 2014) citing to GEICO v. Open MRI of Miami-Dade, Ltd., 18 Fla. L. Weekly Supp. 337a (Fla. 11th Jud. Cir., Feb. 16, 2011). Unless the insurer is put on notice of the exact amount to pay then the entire purpose of submitting a demand letter would be defeated. See Mercury Ins. Co. of Fla. v. Harvey Nelson, 20 Fla. L. Weekly Supp. 122a (Fla. 17th Jud. Cir. [Appellate-Civil] September 12, 2012).
It is clear from legislative intent and the supporting case law that strict specificity must be adhered to regarding the demand letter requirement. The Plaintiff failed to strictly adhere to the demand letter requirements as required under Florida Statute 627.736(10) for the reasons set forth by the Defendant. The Court is not persuaded by Plaintiff’s arguments and the Plaintiff has not disputed the fact that the amount listed in the demand letter as being paid by the Defendant is incorrect or that the dates of service listed in the demand letter as being at issue are different than the dates of service listed in the patient ledger. The Court also rejects Plaintiff’s argument that the dismissal should be without prejudice and as such, grants Defendant’s Motion for Final Summary Judgment.Final Judgment
IT IS HEREBY ORDERED AND ADJUDGED that the Court finds that the Plaintiff’s Complaint is for Personal Injury Protection (PIP) benefits only. As such, the Defendant State Farm Mutual Automobile Insurance Company, Motion for Final Summary Judgment is hereby granted, and Final Judgment is hereby entered on behalf of Defendant, State Farm Mutual Automobile Insurance Company. The Plaintiff, McNamara Chiropractic Center P.A., shall take nothing by this action and the Defendant, State Farm Mutual Automobile Insurance Company, shall go hence without a day. The Court retains jurisdiction for the purpose of determining any motion by the Defendant to tax fees and costs.
