22 Fla. L. Weekly Supp. 359a

Online Reference: FLWSUPP 2203WRENInsurance — Personal injury protection — Demand letter — Sufficiency — Insurer waived any deficiencies in demand letter by failing to object to letter prior to filing of suit — PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer — By attaching itemized statement to demand letter, medical provider complied with requirements of section 627.736(10)

PHYSICIANS MEDICAL CENTERS JAX, INC. A/A/O MELANIE WRENN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-1099-MA. August 25, 2014. Mose Floyd, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. David Gagnon, Taylor, Day, Grimm & Boyd, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY 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 July 29, 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, and having heard argument, and otherwise being sufficiently advised in the premises finds as follows:

The Defendant’s position in this case is that the Plaintiff’s Pre-suit Demand Letter (“PDL”) fails to satisfy §627.736(10) for a variety of reasons, including failure to calculate exact amount owed, failure to include prior payments made, and because the Plaintiff’s calculation do not match those of the Defendant. The Plaintiff’s position is that it satisfied the condition precedent because it attached an itemized statement to its PDL and it had no duty to calculate the exact amount owed. Further, Plaintiff alleges that the Defendant waived its right to challenge the PDL because the Defendant took no issue with the Plaintiff’s PDL until after suit was initiated. Also, Plaintiff argues that adding additional compliance requirements not specifically enumerated by §627.736(10) creates additional encumbrances that violate a potential litigant’s constitutional right to access the courts.¹

This Court finds that the Defendant waived its right to challenge the Defendant’s 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 all of the issues raised could have been remedied if the Defendant raised these issues in its PDL response. Instead:

“[t]he 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 31.

Like in Perez, here the Defendant failed to raise any issue with the Plaintiff’s PDL until after suit was filed. Although there is no language in §627.736 requiring an insurance carrier to send a response to a PDL, 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, the carrier cannot then complain about curable defects once litigation is initiated. To allow such conduct would allow insurance carriers to “sit on their hands” instead of trying to respond to PDL’s and then, after litigation is initiated, look for any technical defect, however minor, in a Plaintiff’s PDL as a ground to state that the Plaintiff failed to comply with the condition precedent. Therefore, since the Defendant failed to raise any objection in response to the Plaintiff’s PDL prior to litigation, the defense is now waived.

Next, this court is also mindful of its constitutional duty to allow litigants access to courts. A PDL is a condition precedent to filing a lawsuit pursuant to § 627.736. Therefore, when examining a potential litigant’s burden in complying with a condition precedent, “Florida courts are required to construe such requirements so as to not unduly restrict a Florida citizen’s constitutionally guaranteed access to courts.” Apostolico v. Orlando Regional Health Care System, 871 So.2d 283 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D750b]. Florida Statute § 627.736 (10) is very specific:

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 § 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.

All of the requirements of the statute were met by the provider. Plaintiff attached an itemized statement that included the requisite information that gave the insurance carrier the ability to take a second look at the dates and services at issue and the exact charge for each particular service. Requiring the Plaintiff to calculate the exact amount owed or include prior payments made (which the insurance carrier would already know since, obviously, the carrier made the payment) is nowhere listed as a requirement to satisfy §627.736(10). In fact, the Defendant’s position is that, not only must this information be included, but if the calculations do not mirror those of the insurance carrier, the PDL is still not compliant. This language is absent from §627.736 (10). For the court to hold a potential litigant to this high standard would effectively result in a constitutional denial of access to courts. While the Fifth District Court of Appeal in Apostilico addressed conditions precedent in a medical malpractice paradigm, the rationale of allowing full and unencumbered access to courts applies equally in a PIP context with respect to a PDL. See, Apostilico, at 286 (“While it is true that presuit requirements are conditions precedent to instituting a malpractice suit, the provisions of the statute are not intended to deny access to courts on the basis of technicalities”) (emphasis added), citing, Archer v. Maddox, 645 So.2d 544 (Fla. 1st DCA 1994), also see, Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D131a].

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 Plaintiff is NOT challenging the constitutionality of requiring a PDL prior to filing a lawsuit pursuant to F.S. 627.736. The parties, in fact, stipulate to its constitutionality. The challenge at issue here, by the Plaintiff, is whether the Defendant’s assertion that a PDL must state the exact “amount owed . . . to the penny” rises to a level that effectively prohibits potential litigants from having access to courts.