23 Fla. L. Weekly Supp. 281a
Online Reference: FLWSUPP 2303PRODInsurance — Personal injury protection — Demand letter — Amended complaint — Medical provider was required to send new demand letter prior to filing amended complaint seeking payment for additional dates of service that were not included in initial demand letter — Amended complaint is stricken without prejudice
MULTICARE REHABILITATION, A/A/O MARIA PRODHOMME, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. COCE-15-003366 (55). July 27, 2015. Honorable Daniel J. Kanner, Judge. Counsel: Howard W. Myones and Travis Greene, Anidjar & Levine, Ft. Lauderdale, for Plaintiff. Charles B. Strasser, Law Offices of Neil V. Singh, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSAND/OR STRIKE PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE having come on to be heard on Defendant’s Motion to Dismiss and/or Strike Plaintiff’s Amended Complaint, and the Court having heard argument of counsel, and being otherwise advised in the premises, being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On February 13, 2015, Plaintiff filed its Complaint against Defendant for PIP benefits for dates of service September 16, 2014 through November 22, 2014 and alleged $237.84, plus interest assuming some of Plaintiff’s bills were applied to the deductible or statutory reduction of twenty (20%) percent, was due and owing.
2. On April 20, 2015, Plaintiff filed an Amended Complaint for PIP benefits for dates of service September 16, 2014 through March 14, 2015 and alleged $5314.31, plus interest assuming some of the plaintiff’s bills were applied to the deductible or statutory reduction of twenty (20%) percent, was due and owing.
3. In paragraph 11 of its Amended Complaint, Plaintiff alleges that it has performed all conditions precedent in accordance with Florida Statute §627.736(10)(2013).
4. Defendant asserts that Plaintiff failed to perform all conditions precedent to filing its Amended Complaint in accordance with Florida Statute §627.736(10)(b)3 (2013) and its Amended Complaint should be dismissed and/or stricken.
5. Pursuant to Florida Statute §627.736(10)(a) and §627.736 (10)(b)(3), Plaintiff is required to provide written notice of an intent to initiate litigation to Defendant, which includes an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due, as a condition precedent to filing its Amended Complaint.
6. The Plaintiff never provided written notice of an intent to initiate litigation to Defendant, which includes an itemized statement specifying each exact amount, the date of service, or accommodation, and the type of benefit claimed to be due on the additional dates of service prior to filing its Amended Complaint and its Amended Complaint is therefore improper.
FINDINGS & CONCLUSIONS OF LAW
The Court hereby adopts the foregoing findings of fact and law.
The demand letter is a “condition precedent to filing any action” for PIP benefits under Florida Statute, 627.736(10). The specific requirements for the demand letter are stated in F.S. 627736(10)(b)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 . . .” Id. [Emphasis supplied].
The legislature has mandated that the “Demand Letter” requirements of Florida Statute, §627.736(10) must be strictly adhered to and the failure to do so does not satisfy the demand letter condition precedent set forth in the Statute. 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 language of subsection §627.736(10)(b)(3) requires precisionin a demand letter by its requirement of an “itemized statement specifying each exact amount.” See Id. The statute mandates that the amount at issue for a bill be specified early in the claim process. Id. The pre-suit demand letter must provide proper notice of the exact amount due. Id., citing to Fountain Imaging of West Palm Beach, LLC. V. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (Fla. 15th Cir. Ct. March 30, 2007).
Here, Plaintiff’s initial pre-suit demand cited dates of service September 16, 2014 through November 22, 2014 and alleged $237.84 and now seeks an amendment to allege additional dates of service not included in the initial pre-suit demand and a different total amount of $5314.31. The reason for a demand letter is to place the Defendant on notice that there is an amount owed and to afford the Defendant the opportunity to pay that amount before a suit is filed. In this case, the parties agree that the original demand complied with the statutory requirement for the initial Complaint. Counsel for the Defendant argues that there should have been notice, in the form of a demand, for the charges for the additional dates of service prior to the filing of the Amended Complaint. The Court agrees.
The Plaintiff has not satisfied the condition precedent to filing the Amended lawsuit and as such has failed to comply with Florida Statute 627.736(10) for the additional dates of service. .
It is therefore ORDERED AND ADJUDGED as follows:
Defendant’s Motion to Strike Plaintiff Amended Complaint is hereby GRANTED. Plaintiff’s Amended Complaint is hereby stricken without prejudice. This matter will proceed under the original Complaint until further Order of the Court. The Defendant is given 20 days from the date of this Order to Answer the Plaintiff’s original Complaint.
