22 Fla. L. Weekly Supp. 454b
Online Reference: FLWSUPP 2204BECKInsurance — Personal injury protection — Demand letter — Sufficiency — 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 prior to filing of suit
RUTH BECK, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2014 SC 289. October 14, 2014. Honorable Nina Ashenafi-Richardson, Judge. Counsel: John M. Leace, Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Plaintiff. Marsa Beck, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENTREGARDING THE DEMAND LETTER
THIS MATTER, having come on for hearing on October 2, 2014, on the Plaintiff’s Motion for Summary Judgment as to Plaintiff’s Compliance with Condition Precedent and Motion for Partial Summary Judgment as to Defendant’s Third Affirmative Defense and Defendant’s Cross-Motion for Summary Judgment, and after review of the pleadings and being otherwise fully apprised in the premises, it is hereby ORDERED and ADJUDGED as follows:Findings of Fact
This lawsuit arose out of Defendant, State Farm Mutual Automobile Ins. Co.’s denial of the Plaintiff, Insured, Ruth Beck’s, Personal Injury Protection (“PIP”) benefits for medical bills incurred for treatment rendered as a result of an automobile accident. The record reveals that Defendant denied the bills based upon an Independent Medical Examination (“IME”) set by State Farm. The response to the Plaintiff’s PIP demand letter prior to the initiation of this lawsuit indicated that State Farm was standing by its decision to deny the bills based upon the IME termination. At no time did State Farm indicate a defect in the Pre-Suit demand letter in its response letter sent to the Plaintiff.
The Pre-Suit demand letters contained the following pursuant to 627.736(10), Florida Statutes: Notice that it was a demand letter under 627.736; the name of the insured; the claim number; the name of the medical provider; an itemized statement either attaching the CMS 1500 forms and/or the Explanation of Benefits or the billing ledger, specifying the amounts, the dates of treatment, and the type of benefit being claimed.Conclusions of Law
The Defendant alleges that the Plaintiff failed to comply with the pre-suit demand letter (PDL) requirements of Section 627.736(10), Florida Statutes by including charges for dates of service that had not previously been billed to the insurer, thus including charges that were not “passed due.” The Plaintiff’s position is that it satisfied the condition precedent because it attached an itemized statement, which included all charges at issue, to its PDL. Additionally, the Plaintiff argues that the Defendant waived any defects in the Plaintiff’s PDL because the Defendant did not raise such an issue until after litigation was initiated.
The issue of compliance with the PIP pre-suit demand letter is not new to Florida Courts and both parties presented case law to support their various positions. At issue in this case is whether or not the Plaintiff substantially complied with Section 627.736(10), Florida Statutes. See Patry v. Capps, 633 So.2d 9 (Fla. 1994) (Plaintiff’s pre-notice to commence medical malpractice action substantially complies with statute where service was perfected by hand delivery, not by certified mail as required by statute) Robby G. Hansen, D.C., a/a/o Valerie Scoon v. United Services Automobile Association, 17 Fla. L. Weekly Supp. 27a (Fla. 2nd Jud. Cir., Leon County, October 1, 2009) and the county court decision, United Services Automobile Association v. Robby G. Hansen, D.C., a/a/o Valerie Scoon, 17 Fla. L. Weekly Supp. 1151b (Fla. 2nd Jud. Cir. Appellate July 30, 2010) (improper missed appointment fee included in demand) and Ultra Care & Diagnostic, Corp. a/a/o Yania Rodriguez v. MGA Ins. Co., 20 Fla. L. Weekly Supp. 185b (Fla. Miami-Dade 2012) (PDL sent to wrong address).
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 amounts billed by the provider during the treatment period. 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. In this case, the Plaintiff did substantially comply with Section 627.736(10), Florida Statutes and gave State Farm every opportunity to review and pay or deny the claim prior to the filing of this lawsuit.
Additionally, the Plaintiff 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. 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.
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 to send one that fails to take issue, with any specificity, of the alleged non-compliance with the Plaintiff’s PDL, then the carrier cannot come back 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 on summary judgment. North Florida Chiro. & Rehab. Center v. State Farm Mutual Automobile Ins. Co., 16-2012 SC 5168 MA (Duval Co. Florida, Aug 28, 2014), Neurology Partners, P.A. D/B/A Emas Spine & Brain A/A/O Scott Bray v. State Farm Mutual Automobile Ins. Co., Online Reference: FLWSUPP 2201BRAY [22 Fla. L. Weekly Supp. 101b]. Therefore, since the Defendant failed to raise any objection in response to the Plaintiff’s PDL prior to litigation, the defense is now waived.
For the reasons set forth above, Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED as to Affirmative Defense Number 3; GRANTED as to performing a condition precedent under the policy of insurance. Further, this Court DENIES Defendant’s Motion for Final Summary Judgment for the reasons set forth herein.
