24 Fla. L. Weekly Supp. 193a
Online Reference: FLWSUPP 2402SDAVInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where there were conflicting cases supporting both parties’ positions on issue of validity of assignment prior to circuit court decision on issue, medical provider’s position cannot be said to have not been supported by then-existing law — Attorney’s fees and costs are awarded to insurer where provider should have known that action was premature because ledger attached to demand letter, which was ambiguous and stated that nothing was due, lacked specificity required to satisfy condition precedent
ORTHOPEDIC SPECIALISTS OF SOUTHWEST FLORIDA, a/a/o SANDRA DAVIS, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Small Claims Action. Case No. 14-SC-1615. April 20, 2016. Maria E. Gonzalez, Judge. Counsel: Christine King, McQuagge Law Firm, Ft. Myers, for Plaintiff. Kimberly A. Sandefer, Dutton Law Group, P.A., Tampa, for Defendant.
AMENDED1 ORDER GRANTINGMOTION FOR ATTORNEYS FEES
THIS CAUSE comes before the Court on Defendant’s “Motion For Attorney’s Fees And Costs,” filed June 15, 2015. Having reviewed the motion, the case file, and the applicable law, and having heard argument by the parties on February 23, 2016, the Court finds as follows:
1. Plaintiff filed its complaint on May 22, 2014.
2. In the complaint, Plaintiff indicated the amount in controversy is less than $100.
3. Defendant answered with affirmative defenses, one of which was failure to satisfy a condition precedent. Defendant also filed a motion for summary judgment which included this issue.
4. Before the motion for summary judgment could be heard, Plaintiff filed a voluntary dismissal on June 3, 2015.
5. Defendant’s motion for attorney’s fees argued that pursuant to Fla. Stat. §57.105, it had sent Plaintiff notices of intent to seek sanctions for failure to satisfy a condition precedent to file suit, and invalid assignment of benefits. Regarding the condition precedent issue, Defendant argued that Plaintiff filed a demand letter claiming the amount due was $890 yet the billing ledger states no amount is owed, such that Defendant was unable to determine the true amount in controversy to pay in order to avoid a lawsuit. Defendant further argued that due to the defects in the demand letter, which failed to give notice of the amounts due, dates of services and treatment, and benefits claimed, Plaintiff had failed to meet a condition precedent to filing suit because the ledger was not an itemized statement of the specificity required by statute. Defendant contended that it had prevailed in the lawsuit since Plaintiff voluntarily dismissed, and that Fla. Stat. §57.105 contains no requirement for bad faith.
6. Plaintiff argued that the demand letter complies with the statute, and that there is no requirement for Plaintiff to make calculations or reconcile “math inconsistencies” for Defendant. Plaintiff further argued that the PIP statute does not require a demand letter to state the amount which is ultimately found due, only that an itemized statement must be submitted so the insurance company can confirm dates of service and the amount the medical provider charged. Plaintiff argued that Defendant did not prevail on a significant issue, and was not a prevailing party, and that Defendant failed to prove Plaintiff acted in bad faith as necessary to move for sanctions.
7. Regarding the assignment of benefits issue, there were conflicting cases on both sides of the argument on this issue prior to the Circuit Court deciding this issue on appeal. Therefore, since there was case law to support the positions of both parties, the Court cannot find that Plaintiff’s assignment of benefits was not supported by “then-existing law.”
8. Fla. Stat. §627.736(10)(a) requires that, as a condition precedent to filing suit for benefits, the provider must give written notice to the insurer once the claim is overdue. Subsection (b)(3) requires that the notice include “an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.” The statute imposes a duty on medical providers to specify the proper compensable amount owed by the insurer, and to “leave no question as to what amounts are being sought by the notice.” State Farm Fire and Casualty Co. v. MRI Associates of America, LLC, 17 Fla. L. Weekly Supp. 745a (Fla. 15th Cir. 2010), quoting Tampa Bay Imaging, LLC v. Esurance Ins. Co., 17 Fla. L. Weekly Supp. 234a (Fla. 13th Cir. 2009). A lawsuit is premature unless the insurer is provided with the exact amount due. Id. (internal citations omitted); Physical Therapy Group LLC v. Mercury Ins. Co., 13 Fla. L. Weekly Supp. 889c (Fla. 11th Cir. 2006) (PIP statute entitles insurer to know from demand letter exact amount due, which calculations Plaintiff depended on in determining the amount due, and what to pay in order to avoid litigation). “Plaintiff must specify each exact amount at issue for each individual service charge at issue, along with an accurate account of [the] total amount that is being claimed as due.” Id. (internal citations omitted). The case law submitted by Plaintiff on this issue is distinguishable, since in those cases itemized statements or CMS-1500 forms were attached to the demand letters. Here, only an ambiguous ledger was attached.
9. The Court finds that the insurance ledger was not an itemized statement of sufficient specificity as required by the statute. While Plaintiff may have no duty to calculate for Defendant, Plaintiff is required by statute to meet the condition precedent of attaching an itemized statement of sufficient specificity to the demand letter. The insurance ledger stated nothing was due, the demand letter requests $890, and the complaint misrepresents that the amount in controversy is less than $100. The Court is unable to determine by looking at the demand letter and the ledger where the amount in the demand letter came from, what charges are unpaid, or what charges Plaintiff claimed were due. The Court finds that Plaintiff failed to meet the condition precedent to filing suit pursuant to §627.736(10), Fla. Stat., since the demand letter lacks the specificity required by the statute.
10. Fla. Stat. §57.105(1) provides that upon motion, the trial court “shall award a reasonable attorney’s fee” to the prevailing party when the court finds that the losing party knew or should have known that a claim was not supported by necessary material facts or would not be supported by the application of law to those material facts. “A plaintiff’s voluntary dismissal makes a defendant the ‘prevailing party’ within the meaning of subsection 57.105(7) . . .” Kelly v. Bankunited, FSB, 159 So.3d 403, 405 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D684a], quoting Mihalyi v. LaSalle Bank, N.A., 39 Fla. L. Weekly D2269, at *1 (Fla. 4th DCA 2014). On July 27, 2014, Defendant served Plaintiff with notices of intent to file sanctions, attaching the motion for sanctions which would be filed if Plaintiff did not dismiss the case within the 21 day safe harbor period. Plaintiff did not voluntarily dismiss the complaint until 300 days after the safe harbor deadline. Plaintiff should have known based on the statute and case law that the action was premature and unsupported by the material facts necessary to establish the claim, because the demand letter and attached ledger lacked the required specificity.
Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s motion for sanctions pursuant to Fla. Stat. §57.105 is GRANTED. Defendant is entitled to recover reasonable attorney’s fees and costs it has accrued since the filing of this action. The Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs to be awarded to Defendant, as well as the apportionment to be paid by Plaintiff and Plaintiff’s counsel.
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1Amended to correct certificate of service.
