25 Fla. L. Weekly Supp. 282a
Online Reference: FLWSUPP 2503CAMBInsurance — Personal injury protection — Request for information or documentation — Where medical provider failed to respond to insurer’s pre-suit request for written report of insured’s condition, provider’s claim was not overdue at time demand letter was sent and condition precedent to suit was not satisfied
FRIV MD, PLLC, a/a/o Alejandro Cambronero, Plaintiff(s), v. ESURANCE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-14372 SP 25 (01). May 1, 2017. Jason Emilios Dimitris, Judge. Counsel: Mitzi Espino, Todd Landau, PA, Hallandale Beach, for Plaintiff. Patrick F. Kissane, Law Office of Norma Miranda Davies, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT, DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT AS TODEFENDANT’S 627.736(6)(b) REQUEST, AND DENYINGPLAINTIFF’S MOTION FOR RECONSIDERATIONAND/OR REHEARING ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AS TO PLAINTIFF’SFAILURE TO COMPLY WITH FLORIDASTATUTE 627.736(6)(b)
THIS CAUSE, having come before the Court on January 3, 2017, on cross motions for Summary Judgment, Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Summary Judgment As to Defendant’s 627.736(6)(b) Request, and on April 25, 2017, Plaintiff’s Motion for Reconsideration and/or Rehearing on Defendant’s Motion for Summary Judgment as to Plaintiff’s Failure to Comply with Florida Statute 627.736(6)(b) Request, and the Court having heard argument of counsel and being otherwise advised of the premises, it is hereby ORDERED and ADJUDGED as follows:
1. Plaintiff’s Motion for Reconsideration and/or Rehearing on Defendant’s Motion for Summary Judgment as to Plaintiff’s Failure to Comply with Florida Statute 627.736(6)(b) is DENIED.
2. Defendant had the right, pursuant to Florida Statute §627.736 (6)(b) to request a written report of the injured person’s condition, and appropriately requested a report of the injured person’s medical condition. Defendant sent a timely request under Florida Statute § 627.736(6)(b) to the Plaintiff on February 13, 2013.
3. “Based on the plain language of this subsection (627.736(6)(b)), as well as the title of the subsection, it is clear that the focus of this provision is the discovery of documents regarding the treatment and related billing of the individual injured person.” State Farm v. Delray Med.Ctr. 178 So. 3d 511 (Fla. 4th DCA 2015. [40 Fla. L. Weekly D2467a])
4. Florida Statute §627.736(6)(b) states that:
(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial. Such sworn statement must read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” A cause of action for violation of the physician-patient privilege or invasion of the right of privacy may not be brought against any physician, hospital, clinic, or other medical institution complying with this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. As used in this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. An insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.
5. In contravention to the statutory requirements under Florida Statute §627.736(6)(b), the Plaintiff failed to furnish Defendant with a “written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary” together with a “sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial.”
6. According to Florida Statute §627.736(6)(b), “[I]f an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under subparagraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with subparagraph (4)(b), which provides that payment is “overdue if not paid within 30 days after written notice is furnished to the insurer” or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.”
7. In other words, upon a proper request from the insurer, subsection (6)(b) requires a provider, like the Plaintiff, to furnish certain documentation or information in order to recover for its claim, and payment does not become due unless and until the requested information is provided. See Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2705a]; State Farm Mut. Auto. Ins. Co. v. Goldstein, 798 So. 2d 807 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2541a]; MRI Services, Inc. v. State Farm Mut. Auto. Ins. Co., 807 So. 2d 783 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D458b].
8. Florida Statute § 627.736(10)(a), states that “[a]s 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.” According to the statute, the notice must state that it is a “demand letter” pursuant to § 627.736(10), Fla. Stat. and must state with specificity:
I. 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.
II. The claim number or policy number upon which such claim was originally submitted to the insurer.
III. 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.
9. As to timing, “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).” Florida Statute § 627.736(10)(a)(emphasis added). Thus, in order to proceed with an action for benefits under the Florida Motor Vehicle No-Fault Law, a claim must be overdue, including failure to pay ten days after the receipt of any information requested under Florida Statute § 627.736(6)(b).
10. Although Plaintiff filed a statutory demand letter under Florida Statute §627.376(10), Plaintiff failed to properly respond to Defendant’s request for discovery pursuant to Florida Statute §627.736(6)(b). Accordingly, Plaintiff’s claim for benefits was never overdue. Consequently, Plaintiff’s statutory §627.736(10) demand letter was premature, and Plaintiff failed to satisfy a condition precedent to bringing the instant action since their claim was not overdue. See Medical Center of the Palm Beaches d/b/a Central Palm Beach Physicians & Urgent Care, Inc. a/a/o Carmen Santiago, Appellant, v. USAA Casualty Insurance Company, Appellee, Appeal Case No. 4D14-3580 (Fla. 4th DCA August 31, 2016. [41 Fla. L. Weekly D2018b]) See also, MRI Associates of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].
WHEREFORE IT IS ORDERED AND ADJUDGED THAT:
· Final Summary Judgment is entered in favor of Defendant Esurance Property and Casualty Insurance Company it shall go hence without day;
· The Court reserves jurisdiction to determine the Defendant’s entitlement to attorney’s fees and taxable costs.
· Plaintiff’s Motion for Summary Judgment as to Defendant’s §627.736(6)(b) Request is Denied.
· Plaintiff’s Motion for Reconsideration and/or Rehearing on Defendant’s Motion for Summary Judgment as to Plaintiff’s Failure to Comply with 627.736(6)(b) is Denied.
