25 Fla. L. Weekly Supp. 977a
Online Reference: FLWSUPP 2511LEZCInsurance — Personal injury protection — Demand letter — No merit to argument that insured who assigned her PIP benefits to medical provider had no authority to submit demand letter to insurer — Nothing in PIP statute requires particular entity to send demand letter — Premature demand letter sent when all included claims were not yet overdue is deficiency that is overcome by passage of time and does not require abatement of suit — Further, insurer waived any deficiencies in demand letter by tendering payment in response to letter — No merit to argument that payment did not effect waiver because payment was made to provider, not insured, where payment was sent in response to insured’s demand letter and sent to insured’s counsel — Standing — Insured who obtained revocation of assignment from provider before filing suit has standing
DIANA LEZCANO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 06-2066 SP 25 (4). January 9, 2018. Carlos Guzman, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., for Plaintiff. Michael Rosenberg and Kristina Davis Forst, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL JUDGMENT REGARDINGSTANDING AND FAILURE TO COMPLYWITH CONDITIONS PRECEDENT
THIS MATTER, having come before the Court for hearing on September 05, 2017, on Defendant’s Motion for Final Summary Judgment regarding the issue Standing and Failure to Comply with Conditions Precedent, the Court having reviewed each party’s respective motions, read relevant legal authority, heard argument from counsel of each party, and been sufficiently advised in the premises, finds as follows:
FACTUAL BACKGROUND
This matter originates from an automobile accident involving Diana Lezcano (hereinafter referred to as the “Plaintiff”) which occurred on or about September 11, 2005. As a result of the injuries sustained in the automobile accident, the Plaintiff was treated at a facility, Figueroa Medical Center, from September 13, 2005 through December 12, 2005. Bills, along with an Assignment of Benefits, were submitted, in a timely manner to the Defendant, State Farm Mutual Automobile Insurance Company (hereinafter referred to as the “Defendant”), for services rendered to the Plaintiff. The Defendant tendered partial payment for the services rendered by Figueroa Medical Center.
Soon thereafter, on January 16, 2006, a Demand Letter was submitted by the Plaintiff to the Defendant. Said Demand Letter did not include an Assignment of Benefits, nor did it include a revocation of the Assignment of Benefits, and sought payment for services rendered by Figueroa Medical Center for dates of service: September 13, 2005-December 12, 2005. On January 24, 2006, the Defendant responded to the demand letter and indicated that an Assignment of Benefits was missing and thus no payment will be tendered. Soon thereafter, on February, 02, 2006, the Defendant sent correspondence to Plaintiff’s counsel indicating that pursuant to an Independent Medical Consultation, it has determined that some of the services provided were not medically necessary and thus would only tender payment for a portion of the charges in question. The Defendant also included a partial payment within said correspondence.
On February 08, 2006, the Plaintiff filed suit against the Defendant for services rendered by Figueroa Medical Center. On February 22, 2006, Plaintiff’s counsel submitted to the Defendant a Joint Revocation of Assignment dated February 04, 2006. During litigation, the Plaintiff submitted a second Demand Letter to the Defendant demanding payment for dates of services of September 13, 2005 through December 12, 2005.
The Defendant alleges that the Plaintiff has failed to comply with Florida Statute 6273.736(10) by submitting a defective Demand Letter and also lacks standing to maintain the subject suit against the Defendant.
ANALYSIS
Summary judgment is only appropriate “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The burden is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the non-moving party.” Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224 (Fla. 5th DCA 1989) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979)). Additionally, the moving party must disprove or establish as legally insufficient the non-moving party’s affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Since “summary judgments deprive the losing party of his or her day in court,” such motions should be granted only when there are no genuine issues of material fact to be resolved by the trial court. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b]. Simply stated, in the instant matter, the burden is on Plaintiff to establish that the charges at issue reasonable, related and medically necessary. With that being said, it is not sufficient for the Defendant to simply state that the Plaintiff’s services are unreasonable, not medically necessary or related without providing insight as to how this determination was made. See Progressive Express Ins. Co. v Freidman, M.D., P.A, 14 Fla. L. Weekly Supp. 320c.
DEFECTIVE PRE-SUIT DEMAND LETTER
The Defendant’s position is that the Plaintiff has submitted a defective pre-suit demand for dates of service of September 13, 2005 through December 12, 2005. The Defendant indicates that the Plaintiff failed to include a revocation of benefits with its first Demand Letter. The effect of such being that the Plaintiff had no authority to submit said Demand Letter. The Plaintiff argues that although she executed an Assignment of Benefits it does not limit her ability to exercise her ability to ensure that the Defendant complies with its contractual obligations in tendering payment to any facility that rendered services to her.
The requirements of Fla. Stat. §627.736(11)(2005), which are clear and unambiguous, are as follows:
(11) Demand letter. —
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it is a “demand letter under s. 627.736(11)” 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 upon 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) or the lost-wage statement previously submitted may be used as the itemized statement. To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. . .
This Court finds that nothing in Fla. Stat. §627.736(11)(2005) indicates that a particular person or entity must send a Demand Letter prior to filing suit. The Court is not free to edit statutes of add requirements that the legislature did not include. Meyer v Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D990c]. As such, taking a strict construction of Fla. Stat. §627.736(11)(2005), this Court finds Defendant’s position must fail.
The Defendant further argues that Plaintiff’s initial Demand Letter was defective in that it included dates of services which were not yet overdue and thus Plaintiff’s suit is premature. In the alternative, the Defendant argues that the subject suit should be abated. This Court disagrees with the Defendant’s notion. The Court relies on United Auto. Ins. Co. v. Dora Ubeda, Case no.: 07-45 AP (Fla. 11th Jud. Circ. App. 2010) [18 Fla. L. Weekly Supp. 32a] which stands for the proposition that a premature Demand Letter sent before the claim became overdue is a deficiency which is cured by the passage of time and does not require abatement. In Ubeda, the Court closely construed Fla. Stat. 627.736(11) while considering the personal injury protection statutory scheme which is to provide broad personal injury protection insurance coverage. The Court found that United received actual notice that the insured intended to file suit, a primary purpose underlying the presuit procedures. Given the statute’s remedial purpose and no prejudice to United, the Court held that the passage of time cured the first demand letter’s prematurity.
Moreover, this Court is also aware of its constitutional duty to allow litigants access to the courts. When examining conditions precedent, they must be construed narrowly in order to allow Florida citizens access to courts. Pierrot v. Osceola Mental Health, 106 So.3d 491 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D131a]. “Florida courts are required to construe such requirements so as to not unduly restrict a Florida citizen’s constitutionally guaranteed access to courts.” Apostolico v. Orlando Regional Health Care System, 871 So.2d 283 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D750b]. For this Court to hold a potential litigant to the standard suggested by the Defendant would effectively result in a constitutional denial of access to courts. While the Fifth District Court of Appeal in Apostolico and Pierrot addressed conditions precedent in a medical malpractice paradigm, the rationale of allowing full and unencumbered access to courts applies equally in a PIP context with respect to a PDL. See, Apostolico, at 286 (“While it is true that presuit requirements are conditions precedent to instituting a malpractice suit, the provisions of the statute are not intended to deny access to courts on the basis of technicalities”) (emphasis added), citing, Archer v. Maddux, 645 So.2d 544 (Fla. 1st DCA 1994).
Finally, Defendant waived any deficiencies in connection with said demand letter by tendering payment on February, 02, 2006. The Defendant argues that waiver does not apply as said payment was issued to Figueroa Medical Center. This Court disagrees as the Defendant clearly acted in response to Plaintiff’s Demand Letter and issued payment. The Defendant acted in contradiction to its assertion that it cannot tender payment since it did not have a Revocation of Assignments executed by the Plaintiff and Figueroa Medical Center. Moreover, this Court finds that if the Defendant truly had any issues pertaining to the Revocation of Assignment, payment should have been sent directly to the provider rather than Plaintiff’s counsel.
DEFECTIVE POST-SUIT DEMAND LETTER
The Defendant argues that the Plaintiff’s second Demand Letter sent during the subject suit was invalid as it included dates of services which were not yet overdue when the initial Demand Letter was sent. The Defendant argues that it was not allowed the statutorily mandated time to evaluate those bills. This Court disagrees with Defendant’s notion and reincorporates its position in reliance on United Auto. Ins. Co. v. Dora Ubeda, Case no.: 07-45 AP (Fla. 11th Jud. Circ. App. 2010) [18 Fla. L. Weekly Supp. 32a].LACK OF STANDING
Finally, the Defendant argues that the Plaintiff lacks standing to either bring or maintain the present suit against the Defendant as it did not have the authority to serve the Defendant with a pre-suit demand letter because at that time, Figueroa Medical Center, “owned” the cause of action. This Court disagrees with said notion as the Court looks to standing in a parties ability to file suit and not prior to such. As noted above, there is nothing in the PIP statute which requires a particular person or entity to submit a Demand Letter nor is there anything in the statute which indicates that only a person or entity which sends the Demand Letter has standing to file suit. More importantly, prior to filing suit, the Plaintiff had obtained a Revocation of Assignment which was executed by Figueroa Medical Center and the Plaintiff. Thus, Defendant’s argument must fail.
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment regarding the issue Standing and Failure to Comply with Conditions Precedent is hereby DENIED.
