22 Fla. L. Weekly Supp. 265b
Online Reference: FLWSUPP 2202BEALInsurance — Personal injury protection — Demand letter that provided all information needed by insurer to adjust claim was not deficient — No merit to insurer’s objection that it should be able to determine exact amount due from demand letter — Insurer waived defense of defective demand letter by failing to raise any valid objection to letter prior to litigation
MOORE CHIROPRACTIC CENTER INC. A/A/O ANDREW BEAL, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2012-SC-719-(D). August 28, 2014. Richard Townsend, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. David Gagnon, Taylor, Day, Grimm & Boyd, Jacksonville, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYINGDEFENDANT’S CROSS-MOTION FOR SUMMARYJUDGMENT AS TO COMPLIANCE WITHF.S. 627.736 (10) (DEMAND LETTER)
THIS CAUSE came before the Court for hearing on August 20, 2014 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on compliance with Florida Statutes § 627.736 (10). The Court, having reviewed the motions and entire Court file, read relevant legal authority, heard argument, and been sufficiently advised in the premises, finds as follows:
The facts in this case are not in dispute. The Plaintiff submitted its Pre-suit Demand Letter (“PDL”) to the Defendant and attached the CMS-1500 forms as its itemized statement in accord with § 627.736(10).1 The CMS-1500 forms gave the Defendant insurer all the necessary information it needed to properly adjust the claim. Attaching the itemized statement gives the insurer a 30-day “safe harbor” to review the bills a second time in case it may have inadvertently missed or overlooked a bill when initially sent in by the provider. Therefore, the Court finds that the Plaintiff complied with the condition precedent requirement of § 627.736 (10). See, EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Order of Duval County Court Judge Gary Flower, February 8, 2012); First Coast Medical Center, Inc. a/a/o Barbara Derouen v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 118a (Order of Duval County Court Judge Brent Shore, November 12, 2009); EBM Internal Medicine a/a/o Jasmine Gastrin v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Angela Cox dated December 9, 2011); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Scott Bray, (Order of Duval County Court Judge Scott Mitchell August 7, 2014, case number 16-2013-SC-2069-XXXX-MA) [22 Fla. L. Weekly Supp. 101b] (all finding that the Plaintiff complied with § 627.736(10) by merely attaching the itemized statement to its PDL).
The Plaintiff also argues that, even assuming its PDL was deficient, the Defendant is estopped from raising these deficiencies by not taking issue, with any specificity, with the PDL until after litigation was initiated, which constitutes a waiver. Conversely, the Defendant argues that its PDL response placed the Plaintiff on notice, with specificity, of its issues raised in its motion for summary judgment.2 The pertinent language in the Defendant’s response states:
Please note that your demand does not comply with § 627.736(10) in that your office failed to state with specificity or include an “itemized statement specifying each exact amount, date of treatment, service, or accommodation and the type of benefit claimed to be due”. The ledger and/or copies of the bills that you submitted with your correspondence lists all charges incurred instead of providing an itemization of those charges “claimed to be due” as required by statute. An insurer should be able to determine from a “demand letter” that exact amount claimed to be overdue so that it may be resolved without litigation.
The Court takes issue with the Defendant’s position for two reasons. First, the Plaintiff did attach an itemized statement, to wit: the CMS-1500 forms. Therefore, the Defendant’s statement is not correct. Second, the duty to adjust the claim rests solely with the adjuster; not the provider. Therefore, any language that attempts to shift this non-delegable duty to the provider is not in accord with the plain language of § 627.736(10). There is no language in § 627.736(10) requiring the provider to calculate anything so that “an insurer should be able to determine from a demand letter that exact amount claimed to be overdue so that it may be resolved without litigation.” The exact amount owed comes from an accurate and fair adjusting of the claim by the Defendant, once provided with the bills and dates of service at issue by the provider. The Court rejects the Defendant’s contention that it placed the Plaintiff on notice of its alleged deficiencies with any specificity and finds that the Defendant waived this defense. See, United Automobile Ins. Co. v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (Fla. 11th Cir. Ct. 2010); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Sherry Roy v. State Farm Mutual Automobile Insurance Company, 21 Fla. L. Weekly Supp. 927a (Order of Duval County Court Judge Gary Flower dated June 4, 2014) (insurer waived signature issue in Plaintiff’s PDL by failing to raise issue until after suit was filed); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Scott Bray, (Order of Duval County Court Judge Scott Mitchell dated August 7, 2014, case number 16-2013-SC-2069) [22 Fla. L. Weekly Supp. 101b].3 Therefore, since the Defendant failed to raise any objection in response to the Plaintiff’s PDL prior to litigation, the defense is now waived.
Therefore, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Cross-Motion for Summary Judgment is DENIED.
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1The Court reviewed these forms along with the Plaintiff’s PDL, which was received into evidence by agreement of the parties through affidavit and Request for Admissions.
2The Defendant posits that the Plaintiff failed to comply with the condition precedent because the PDL did not account for all prior payments, for not stating the exact amount owed, and for certain mathematical inconsistencies within the PDL itself. These requirements have all been rejected by sister courts. See, EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Order of Duval County Court Judge Gary Flower, February 8, 2012); First Coast Medical Center, Inc. a/a/o Barbara Derouen v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 118a (Order of Duval County Court Judge Brent Shore, November 12, 2009); EBM Internal Medicine a/a/o Jasmine Gaskin v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Angela Cox dated December 9, 2011); and, Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Scott Bray, (Order of Duval County Court Judge Scott Mitchell August 7, 2014, case number 16-2013-SC-2069-XXXX-MA) [22 Fla. L. Weekly Supp. 101b];
3The Defendant argues that § 627.736(10) imposes no duty on it to advise the Plaintiff of anything. While the Court agrees that §627.736(10) imposes no requirement for the Defendant to respond to the Plaintiff’s PDL, once it opts not to send one, or fails to include any language taking issue with alleged “deficiencies” in the Plaintiff’s PDL, it cannot then raise these issue, for the first time, post-suit. To allow such conduct would encourage carriers to look for any technical defect, even if such a defect had no effect on the ability of the Defendant to evaluate the claim, and then attempt to dismiss a case based on that technicality, post-suit.
