23 Fla. L. Weekly Supp. 549b

Online Reference: FLWSUPP 2306MWHAInsurance — Personal injury protection — Demand letter — Sufficiency — PIP statute does not require that demand letter calculate exact amount owed by insurer — By attaching ledger to demand letter, medical provider satisfied section 627.736(10)

SILVER CONSULTING SERVICES, INC. D/B/A SILVER CHIROPRACTIC A/A/O MARVIN WHALEN, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-3350. September 24, 2015. Dawn Hudson, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. John Mollaghan, Herssein Law Group, Tampa, for Defendant.

ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AS TO COMPLIANCEWITH F.S. 627.736(10) (PRE-SUIT DEMAND LETTER)

THIS CAUSE came before the Court for hearing on June 17, 2015 on Defendant’s Motion 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:

The issue in this case is whether the Plaintiff complied with its condition precedent of placing the Defendant on notice of its intent to initiate litigation by sending a Pre-suit Demand Letter (“PDL”) that satisfies Florida Statute § 627.736(10). The statute states, in pertinent part:

DEMAND LETTER. —

(b) The notice required shall state that it is a “demand letter under s. 627.736(10)” and shall state with specificity:

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. . (emphasis added).

The facts in this case are not in dispute. The Plaintiff attached to its PDL a ledger that constitutes the itemized statement. The itemized statement contained the relevant information to allow the Defendant to see the exact dates of service at issue, the CPT codes at issue, the exact charges for those codes and the description of the treatment, service, or accommodation provided.

The Defendant alleges that § 627.736 requires the Plaintiff to calculate the exact amount at issue. This Court rejects the Defendant’s reading as there is no such language supporting such a requirement. This Court notes that sister courts around the State of Florida, and most notably, within Duval County, already rejected the Defendant’s arguments. See, First Coast Medical Center a/a/o Barbara Derouen v. State Farm Mut. Ins. Co., 17 Fla. L. Weekly Supp. 118a (Order of Duval County Court Judge Brent Shore dated November 12, 2009).¹

Both sides rely on the case of MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire & Cas. Co., 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b], wherein the Fourth District Court of Appeal stated, “The language of subsection 627.736(10)(b)3 requires precision in a demand letter by its requirement of an ‘itemized statement specifying each exact amount.’ ” MRI Associates at 465. However, as the Plaintiff argues, the itemized statement in this case lists each exact amount at issue, as well as each date of service and each CPT code at issue. The “exacting” standard goes to the itemized statement, not any calculations that the Defendant asserts that the Plaintiff must include in its PDL. This view is also in accord with the legislative intent of requiring a PDL, which is to give the insurance carrier a thirty-day “safe harbor” to review the bills submitted for a second time and confirm that none of the bills or dates of service were inadvertently missed the first time they were submitted by the provider. The provider is prohibited from initiating litigation until after the carrier gets this second opportunity to adjust the claim.

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, it complied with the requirements of § 627.736. Therefore, the Court finds that the Plaintiff complied with requirement to attach a proper itemized statement.

Therefore, it is ORDERED and ADJUDGED that the Defendant’s Motion for Summary Judgment is DENIED.

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¹Also 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); 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).