22 Fla. L. Weekly Supp. 361a
Online Reference: FLWSUPP 2203BORZInsurance — Personal injury protection — Demand letter — Sufficiency — Medical provider complied with requirements of section 627.736(10) by attaching itemized statement to demand letter — Insurer waived any deficiencies in demand letter by failing to object to letter before suit was filed
MOORE CHIROPRACTIC CENTER INC. A/A/O ROBBIE BORZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2012-CC-257-(D). August 28, 2014. Richard Townsend, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. David Gagnon, Taylor, Day, Grimm & Boyd, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT AS TOCOMPLIANCE WITH F.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 Gaskin v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Angela Cox dated December 9, 2011) [19 Fla. L. Weekly Supp. 382a]; 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 waived these deficiencies by not raising any issue with the PDL until after litigation was initiated, which constitutes a waiver. A review of the Defendant’s PDL response shows no language contained therein taking issue with any of the alleged deficiencies contained in its motion for summary judgment.2 The Defendant points only to the last sentence in its letter, which states “We reserve our right to raise any defenses concerning the validity of the demand letter or any other defenses that relate to this claim for No-Fault benefits” as putting the Plaintiff on notice. The Court finds that this language is mere “boilerplate” and does not place the Plaintiff on notice, with any specificity, as to what is at issue with its PDL.
In United Automobile Ins. Co. v. Juan Manuel Perez, 18 Fla. L. Weekly Supp. 31a (Fla. 11th Cir. Ct. 2010), the insurance carrier, United Automobile, raised numerous issues in its motion for summary judgment challenging the Plaintiff’s PDL. The Court rejected the carrier’s arguments, stating that the questions raised could have been remedied if the Defendant made some inquiry. Instead “the insurance company waited until after suit was filed to make known the reason it did not pay the bill, by including the existence of the defective demand letter in its amended affirmative defenses. By failing to raise that easily remedied issue until after suit was filed, the insurance company waived it.” Perez, at 31a. Like in Perez, here the Defendant failed to raise any issue with the Plaintiff’s PDL until after suit was filed. Also see, 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).
The Defendant argues that § 627.736(10) imposes no duty on it to advise the Plaintiff of anything. This Court agrees that there is no duty to send a response to a PDL contained within §627.736(10). However, once an insurance carrier opts not to send one, or if it sends a response and fails to take issue, with any specificity, of the alleged non-compliance with the Plaintiff’s PDL, then the carrier cannot come back post-litigation and raise the issue for the first time once litigation is initiated. To allow such conduct would encourage carriers not to send demand letter responses and allow them to “sit on their hands” instead of trying to respond or investigate a claim. Then, after suit is initiated, a carrier can look for any technical defect, even if such a defect had no effect on the ability of the Defendant to evaluate the claim during the 30-day “safe harbor” period, and move to have a case dismissed post-suit. 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.
2In its motion, the Defendant alleges that the Plaintiff’s PDL is non-compliant because it does not accurately account for all prior payments nor does it advise the Defendant of the exact amount owed. The Court notes that the first page of the PDL has a line entitled “Amount At Issue: $5,502.24”, so Defendant really takes issue with the calculations not matching those of the Defendant, as contained in its affidavit filed in support of its motion. The Court notes that there is no requirement in § 627.736(10) requiring the provider to calculate the prior payments made, nor is there a requirement that such a calculation must match the Defendant’s calculations “to the penny” in order to be compliant with § 627.736(10). See, 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].
