22 Fla. L. Weekly Supp. 266b

Online Reference: FLWSUPP 2202BROWInsurance — Personal injury protection — Demand letter — Medical provider that attached itemized statement to demand letter satisfied condition precedent to filing suit — No merit to argument that provider was required to account for all prior payments made and calculate exact amount owed — Insurer that failed to take issue with demand letter with any specificity prior to litigation waived defense of defective demand letter

NORTH FLORIDA CHIRO. & REHAB. CENTER A/A/O KENNETH BROWN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2012-SC-005168-MA (J). August 28, 2014. Eleni Elia Derke, 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 25, 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:

This Court previously ruled on the issue on compliance with a condition precedent pursuant to §627.736(10). In fact, this Court already ruled on a demand letter sent by this same counsel and found that attaching the itemized statements was both in accord with the requirements of § 627.736(10) as a matter of law and attaching those statements gave the Defendant enough information “so that it could adequately respond” to the Plaintiff’s Pre-suit Demand Letter (“PDL”) as a matter of fact. See, EBM Internal Medicine a/a/o Kevin Kamau v. United Services Automobile Association, 19 Fla. L. Weekly Supp. 383a (Order of Duval County Court Judge Eleni Derke dated November 29, 2011). Florida Statute § 627.736(10) states, in pertinent part:

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. 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. (emphasis added).

A plain reading of the statute shows that if the Plaintiff attaches an itemized statement to its PDL, it has complied with the requirement of the condition precedent. An itemized statement gives the insurance carrier all the information it needs to confirm the dates and services at issue as well as each exact amount for that treatment, service, accommodation, or supply. The itemized statement can be a CMS-1500, or HCFA form, or any substantial equivalent to place the carrier on notice. Once the carrier is sent a PDL by a potential litigant, the Plaintiff cannot initiate litigation for thirty days. This “safe harbor” gives the insurance carrier a second opportunity to review the bills sent in by the provider during the treatment period and confirm that the bills were all properly received and adjusted by the insurance carrier. In this case, the facts are not in dispute. The Plaintiff attached an itemized statement giving the insurance carrier the requisite information it needed to confirm the dates at issue, the services rendered, and the exact charge for each service. The burden to adjust the claim is on the insurance company, not the provider. The provider has a duty to supply the insurance carrier with its bills in a timely manner, which was done in this case. Therefore, once the provider supplied this information to the carrier a second time in the form of an itemized statement stating each exact amount for each date of service, it complied with the requirements of § 627.736(10). See, MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].

The Defendant’s position is that the Plaintiff failed to “strictly comply” with the condition precedent because it failed to properly account and calculate all prior payments made “to the penny” or enumerate the “exact amount owed”.¹ This Court notes that those arguments are not supported by a plain reading of § 627.736(10) and sister court have rejected this argument. See, EBM Internal Medicine a/a/o Jasmine Gaskin v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 382a, (Order of Duval County Court Judge Angela Cox dated December 9, 2011) (finding no requirement to include prior payments made or exact amount owed in a PDL); Also see, First Coast Medical Center, Inc. a/a/o Barbara Derouen, 17 Fla. L. Weekly Supp. 118a (Order of Duval County Court Judge Brent Shore dated November 12, 2009); 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 dated February 8, 2012); Neurology Partners, P.A., d/b/a Emas Spine & Brain a/a/o Scott Bray v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Scott Mitchell dated August 7, 2014, case 16-2013-SC-2069) [22 Fla. L. Weekly Supp. 101b]; Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Wendy Brody v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Michelle Kalil dated July 23, 2014, case 2012-SC-4885); and, Physicians Medical Centers Jax, Inc. a/a/o Melanie Wrenn v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Mose Floyd dated August 25, 2014, case number 16-2013-SC-1099). Therefore, this Court finds no reason to depart from its earlier ruling in Kamau and finds that that the Plaintiff complied with requirements of F.S. 627.736(10).

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. 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 wrong 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.” 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 dismiss a case 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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¹A review of the Plaintiff’s PDL, which was admitted by stipulation of the parties and Request for Admissions, shows that on page one, the Plaintiff has a section entitled, “Amount At Issue: $1,139.46”. Therefore, the Defendant’s contention that it did not know how much it could “write a check” for and avoid litigation is not supported by the plain language of the PDL. Further, sister courts opined that there is no duty upon the Plaintiff to calculate the exact amount owed. See, Neurology Partners, P.A., d/b/a Emas Spine & Brain a/a/o Scott Bray v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Scott Mitchell dated August 7, 2014, case 16-2013-SC-2069) [22 Fla. L. Weekly Supp. 101b]; Robert J. Indelicato, D.C. a/a/o Ruby Kish v. State Farm Mutual Automobile Insurance Company, 21 Fla. L. Weekly Supp. 184b (Order of Manatee County Court Judge Mark Singer dated October 13, 2013).