22 Fla. L. Weekly Supp. 457a
Online Reference: FLWSUPP 2204MBROInsurance — Personal injury protection — Demand letter — Sufficiency — 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 satisfied legislative intent of section 627.736(10)
ST. JOHNS MEDICAL CENTER A/A/O MELISSA BROWN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-1821. October 22, 2014. Brent D. Shore, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. Jessica Iserman, 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 October 2, 2014 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on compliance with Florida Statutes § 627.736(10). The Parties agree that there are no material disputed issues of fact and this matter may be disposed of as a matter of law. The Court, having reviewed the motions and entire Court file, heard argument, and been sufficiently advised in the premises, finds as follows:
This case involves non-payment of P.I.P. benefits for medical services rendered by the Plaintiff. In its Answer, Defendant raised the affirmative defense of failure to comply with Florida Statutes § 627.736(10) and filed a summary judgment as to said issue, as did the Plaintiff file a summary judgment on the same issue. The Defendant argues that since the Plaintiff’s Pre-suit Demand Letter (“PDL”) contains calculations that do not mirror those of the Defendant, including a different calculation of prior payments made, the Plaintiff failed to comply with Florida Statute § 627.736(10). The Plaintiff states that it attached an itemized statement to its PDL containing all of the information that the Defendant needed to adjust the claim. Further, the Plaintiff states it has no duty to calculate prior payments made or enumerate the exact amount owed and that these are inherent duties in adjusting the claim, which is a duty that rests with the carrier.
This issue is not novel for this Court. In fact, the Court ruled on this exact issue in 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 D. Shore dated November 12, 2009). In Derouen, the Defendant asserted that “Plaintiff’s demand letter failed to specifically set for the exact amount owed by the Defendant.” It also stated that it was “uncertain” as to how the Plaintiff arrived at its amounts claimed to be due. These are the same claims being made by the Defendant in this case.
A reading of the relevant provision of § 627.736(10)(a), Florida Statutes, (2008), states, in pertinent part:
“(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 additional time the insurer has to pay the claim pursuant to paragraph (4)(h).
(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 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) . . . may be used to as the itemized statement.”(emphasis added)
In this case, there is no dispute that the Plaintiff attached an itemized statement containing the requisite information for the Defendant to discern the dates of service, the type of service that forms the basis of the claim, the CPT code, and the charge submitted for that service. The Court notes no language in Florida Statutes § 627.736(10) requiring the Plaintiff to calculate prior payments made by the Defendant. As the payor, the Defendant is acutely aware of its prior payments. The Court questions what benefit is derived by asking the Plaintiff to advise the Defendant of information already in its possession (and of its own making). The purpose of the PDL is not to advise the carrier of information that it already has, but to advise the carrier of information that it may not have, to wit: bills for dates of service that may have been inadvertently unaccounted for by the Defendant with the Plaintiff’s initial billing. As the Plaintiff argues, the “exact amount” language in the statute refers to the exact amount of each charge for each date of service. This interpretation is in accord with the legislative intent of giving the carrier a “second opportunity” to review the bills to correct a payment that may have been inadvertently missed. It also allows both parties a last chance to avoid litigation and confirm the services and charges at issue.
The duty to adjust the claim is on the carrier, not the provider. The provider’s duty is to forward the requisite materials to the carrier so that it can fairly and accurately adjust the claim. Once the Plaintiff attaches its itemized statement, it has complied with its duty to supply the Defendant with each “exact amount”. See, MRI Associates of America 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 language of subsection 627.736(1)(b)3 requires precision in a demand letter by its requirement of an “itemized statement specifying each amount”: it also allows a subsection 627(5)(d) health insurance claim form to be “used as the itemized statement”). The Defendant’s interpretation, which requires the Plaintiff to calculate the exact amount “owed, to the penny” so that it “matches the amount that the Defendant” states should be at issue is not supported by the language of Florida Statutes § 627.736.1
Finally, the Plaintiff presents to this Court at least seven Orders from sister courts in Duval and Clay Counties ruling in favor of the Plaintiff on a PDL of the exact same format as the one in this case.2 Many of these Orders rely on this Court’s Order in Derouen in reaching the same conclusion. This Court was presented with no authority from the Defendant giving cause to depart from its prior ruling in Derouen.
Therefore, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment as to Compliance with Florida Statutes § 627.736(10)(“Demand Letter”) is GRANTED and Defendant’s Cross-Motion for Summary Judgment as to Compliance with Florida Statutes § 627.736(10)(“Demand Letter”) is DENIED.
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1As has been stated in prior Orders from sister courts, “the Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a MedPay provision on a policy (as well us other issues) are unknown to the medical provider, knowledge as to the exact amount owed is virtually impossible. See, EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mut. Auto Ins. Co., 19 Fla. L. Weekly Supp. 410a (Order of Duval County Court Judge Gary Flower dated February 8, 2012); EBM Internal Medicine a/a/o Jasmine Gaskin v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 382a (Order of Duval County Court Judge Angela Cox dated December 9, 2011).
2 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); 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); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Scott Bray v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. l01b (Order of Duval County Court Judge Scott Mitchell); Physicians Medical Center Jax. Inc. a/a/o Melanie Wrenn v. State Farm Fire & Casualty Company (Order of Duval County Court Judge Mose Floyd dated August 25, 2014, case number 16-2013-SC-1099) [22 Fla. L. Weekly Supp. 359a]; North Florida Chiro. & Rehab Center a/a/o Kenneth Brown v. State Farm Mutual Automobile Insurance Company, (Order of Duval County Court Judge Eleni Derke, dated August 28, 2014, case number 16-2012-SC-5168) [22 Fla. L. Weekly Supp. 266b]; 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 Michele Kalil dated July 23, 2014, case number 2012-SC-4885); Moore Chiropractic Center, Inc. a/a/o Payton Brule v. State Farm Mutual Automobile Insurance Company, Order of Clay County Court Judge Timothy Collins dated September 16, 2014, case number 2012-CC-656) [22 Fla. L. Weekly Supp. 266a]; Moore Chiropractic Center, Inc. a/a/o Andrew Beal v. State Farm Mutual Automobile, (Order of Clay County Court Judge Richard Townsend dated August 28, 2014, case number 2012-SC-719) [22 Fla. L. Weekly Supp. 265b]
