24 Fla. L. Weekly Supp. 302b
Online Reference: FLWSUPP 2404INMOInsurance — Personal injury protection — Demand letter that failed to account for payments made by insurer did not satisfy condition precedent to PIP suit
WELLNESS2, PL, d/b/a EAST ORANGE WELLNESS & INJURY CENTER, as assignee of Nancy K. Inmon, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-CC-16237-0. April 28, 2016. Tina Caraballo, Judge. Counsel: Aaryn Fuller, The People’s Law Practice, Inc., Orlando, for Plaintiff. Valencia Percy Flakes, Gobel Flakes, LLC, Orlando, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF
DEFENDANT STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANYTHIS CAUSE having come to be heard on April 8, 2016, on Defendant’s Motion for Summary Judgment, and the Court, having reviewed the motions, the record, the applicable law, the file and after hearing argument of counsel for the parties and having made detailed finds of fact and conclusions of law on the record, finds as follows:
FINDINGS OF FACT
1. Plaintiff filed this action on November 14, 2012, against STATE Farm seeking to recover personal injury protection benefits for medical services provided to Nancy Inmon for dates of service January 17, 2008, through August 24, 2009.
2. On August 24, 2012, the Plaintiff served a demand letter alleged to be pursuant to Florida Statute Section 627.736(10). In its demand letter, the Plaintiff claimed that State Farm did not pay several dates of service.
3. Defendant timely served and filed an Answer and Affirmative Defenses which included a defense that Plaintiff failed to comply with a condition precedent to this action as the Plaintiff’s pre-suit demand letter did not comply with Fla. Stat. §627.736(10).
4. In support of its Motion for Summary Judgment, State Farm filed an affidavit of its representative who testified that payment was made for each date of service for which the Plaintiff stated no payment was made. The affidavit also provided supporting documentation, in the form of Explanations of Review, which reflected the payments State Farm made to the Plaintiff for those dates of service.
5. Plaintiff did not file anything in opposition to the Defendant’s Motion for Summary Judgment.
CONCLUSIONS OF LAW
Rule 1.510(b) of the Florida Rules of Civil Procedure provides that, “A party against whom a claim, counterclaim, cross-claim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.” Rule 1.510(b) Fla. R. Civ. P. Such a motion must state with particularity the grounds upon which it is based and identify the specific admissible evidence upon which the moving party relies. Rule 1.510(c), Fla. R. Civ. P. Summary judgment is proper when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id.; Gimenez v. Napoles, 928 So. 2d 506, 507 (Fla. 3rd DCA 2006)[31 Fla. L. Weekly D1343e]; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)[25 Fla. L. Weekly S390a].
Fla. Stat. §627.736 provides a frame work for billing and payment of medical benefits from an automobile insurance policy providing personal injury protection benefits. The Statute requires a “demand letter,” as a condition precedent to the filing of any action for purportedly overdue benefits. Fla. Stat. §627.736(10). In pertinent part, the law provides:
(10) 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.
(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.
Id. (emphasis supplied).
“Demand letter requirements are intended to be, and must be, strictly construed to effectuate their purpose.” Chambers Medical Group, Inc. a/a/o Angelica Manzano v. Progressive Exp. Ins. Co., 12 Fla. L. Weekly Supp. 556a (Fla. 13th Jud. Cir. Hillsborough Co., Co. Ct., March 18, 2005). A purported demand letter does not satisfy the condition precedent under Fla. Stat. §627.736(10) when it requests amounts that are incorrect and not overdue. See Medical Therapies, LLC f/k/a Medical Therapies, Inc., d/b/a Orlando Pain Clinic (Ricks) v. State Farm Mut. Auto Ins. Co., 22 Fla. L. Weekly Supp. 34a (Fla. 9th Jud. Cir. (Appellate) July 1, 2014). Mark Machuga, DC, PA a/a/o Charles Andre v. State Farm Mut. Auto. Ins. Co., 14 Fla. L. Weekly Supp. 1069a (Fla. 18th Jud. Cir. Seminole Co., Co. Ct., August 16, 2007).1 In Medical Therapies, Plaintiff served a demand letter tha failed to account for any of the prior payments State Farm made. Id. The Court held that the demand letter did not comply with the statute as it was defective in demanding payment for amounts previously paid. Id. Here, Plaintiff’s demand letter erroneously claimed State Farm had failed to pay for numerous dates of service for which payment was in fact made.
The Court has carefully considered the Plaintiff’s pre-suit demand letters and all attachments thereto and has reviewed all summary judgment evidence in the record that was properly submitted in accordance with Florida Rule of Civil Procedure 1.510(c). The Court find that the pre-suit demand letter does not comply with Florida Statute Section 627.736(10) and thus, the Plaintiff has failed to perform the conditions precedent to filing this action. The Court also notes that this Court is bound by the Ninth Judicial Circuit Court’s appellate decision in Medical Therapies, LLC f/k/a Medical Therapies, Inc., d/b/a Orlando Pain Clinic (Ricks) v. State Farm Mut. Auto Ins. Co., 22 Fla. L. Weekly Supp. 34a (Fla. 9th Jud. Cir. (Appellate) July 1, 2014). The Plaintiff has not provided any facts which would create a genuine issue of material fact. Because the Plaintiff has failed to comply with a condition precedent to filing this action, summary Judgment is appropriate in favor of State Farm. Based upon the foregoing findings of fact and conclusions of law and those set forth on the record at the hearing, it is hereby
ORDERED and ADJUDGED:
1. Defendant’s Motion for Final Summary Judgment is GRANTED. Final Summary Judgment is hereby entered in favor of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and against WELLNESS2, PL, d/b/a EAST ORANGE WELLNESS & INJURY CENTER, as assignee of NANCY K. INMON. Plaintiff shall take nothing by this action and Defendant shall go hence without day.
2. The Court reserves jurisdiction to award attorneys’ fees and costs in favor of State Farm and against Plaintiff, including jurisdiction to determine entitlement to, and the amount of, such attorneys’ fees.
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1The decision was affirmed on appeal, 07-72AP, 18th Jud. Cir, Seminole Co. Cir. Ct. Appellate, March 31, 2009.
