25 Fla. L. Weekly Supp. 976a
Online Reference: FLWSUPP 2511ROQUInsurance — Personal injury protection — Demand letter which stated the named insured, copy of assignment, claim number, policy number, dates of service, amount billed, and amount claimed to be due and to which the plaintiff attached a copy of medical provider’s itemized ledger substantially complied with requirements of statute — Statute does not require plaintiff to include prior payments made by defendant in presuit demand letter or include the exact amount owed
OASIS DIAGNOSTIC CENTER, INC., a/a/o Ania Roque, Plaintiff(s), v. STATE FARM FIRE AND CASUALTY COMPANY Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 15-12940-SP-25. December 21, 2017. Patricia Marino-Pedraza, Judge. Counsel: Adam Saben, Shuster & Saben, Miami, for Plaintiff. Scott Danner, Kirwan, Spellacy and Danner, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND PLAINTIFF’SCROSS MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on December 11, 2017, on Defendant’s and Plaintiff’s Cross-Motions for Summary Judgment on compliance with Florida Statutes §627.736 (10) regarding Plaintiff’s alleged Defective Demand Letter. The Court, having reviewed the motions and entire Court file, read relevant legal authority; heard argument, and been sufficiently advised in the above issues, finds as follows:
The Defendant’s position in this case is that the Plaintiff’s Pre-suit Demand Letter fails to satisfy § 627.736(10) because it did not state with specificity the exact amount of benefits due as it failed to acknowledge payments previously made by State Farm and even upon review of the Complaint, the Defendant remains unclear as to the amount at issue. According to the Defendant, without the proper amount due and owed stated on the Demand Letter, State Farm, could not have known the exact amount to pay to avoid litigation. The Plaintiff’s position is that it strictly and/or substantially complied with the requirements of Florida Statute §627.736 (10), that the responsibility to adjust the claim is on the carrier, not the provider, and that conditions precedent, such as the Pre-suit Demand Letter requirement, must be construed narrowly in order to allow Florida citizens constitutionally guaranteed access to courts.
ANALYSIS
The enumerated requirements of a Pre-suit Demand Letter are contained within § 627.736 (10). The statute states, in pertinent part:
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, 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(10)” 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 insurers notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary. (emphasis added).
A plain reading of the statute shows that by the Plaintiff attaching a copy of the medical provider’s itemized ledger and stating within its Demand Letter the named insured, copy of the assignment, claim number, policy number, dates of service, amount billed, “amount claimed to be due” in medical bills in its Demand Letter, it has complied with the requirement of the condition precedent. Plaintiff can also send an itemized statement which gives the insurance carrier all the information it needs to confirm the dates and services at issue as well as each exact amount for that treatment, service, accommodation, or supply. The itemized statement can be a CMS-1500, or HCFA form, or any substantial equivalent to place the carrier on notice, such as the itemized ledger. Once the carrier is sent a Pre-suit Demand Letter by a potential litigant, the Plaintiff cannot initiate litigation for thirty days. This “safe harbor” gives the insurance carrier a second opportunity to review the bills sent in by the provider during the treatment period and confirm that the bills were all properly received and adjusted by the insurance carrier. In this case, the facts are not in dispute. The Plaintiff attached an itemized ledger/CMS-1500 forms giving the insurance carrier the requisite information it needed to confirm the dates at issue, the services rendered, and the exact charge for each service.
The Defendant alleges that § 627.736 requires the Plaintiff to include prior payments made by the Defendant in the Pre-Suit Demand Letter. This Court rejects the Defendant’s reading as there is clearly no language supporting such a requirement. Further, the Court questions “what benefit is derived by asking the Plaintiff to advise the Defendant of information already in its possession and of its own making. The purpose of the pre-suit demand letter is not to advise the carrier of information that it already has, but to advise the carrier information that it may not have. . .” St. Johns Medical Ctr. a/a/o Melissa Brown v. State Farm Mut. Auto Ins. Co., 22 Fla. L Weekly Supp. 457a.
This Court also rejects the Defendant’s contention that the demand letter must indicate the exact amount owed. There is no language contained within the statute for such requirement. Additionally, 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 and other specificities mentioned above within its Demand Letter, it complied with the requirements of § 627.736. Therefore, the Court finds that the Plaintiff substantially complied with Florida Statute § 627.736(10). The Court is unclear, assuming it accepted the Defendant’s interpretation of the Statute, how a claimant (medical provider) is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a Med Pay provision on a policy (as well as other issues) are unknown to the medical provider, knowledge as to the exact amount owed is virtually impossible. This Court is not free to edit statutes to 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).
Finally, this Court is mindful of its constitutional duty to allow litigants access to courts. In Pierrot v. Osceola Mental Health, 106 So.3d 491 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D131a], the Fifth District mandated that conditions precedent must be construed narrowly in order to allow Florida citizens access to courts. A Pre-Suit Demand Letter is a condition precedent to filing a lawsuit pursuant to §627.736. Therefore, when examining a potential litigant’s burden in complying with a condition precedent, “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]. Requiring the Plaintiff to calculate the exact amount owed or include prior payments made is nowhere listed as a requirement to satisfy §627.736(10). In fact, the Defendant’s position is that, not only must this information be included, but if the calculations do not mirror those of the insurance carrier, the Pre-Suit Demand Letter is still not compliant. This language is absent from § 627.736 (10). For the court to hold a potential litigant to the high 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 Pre-Suit Demand Letter. 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 So2d 544 (Fla. 1st DCA 1994).
Based upon the above analysis, this court finds Venus Health Center a/a/o Joaly Rojas vs. State Farm Fire and Casualty Company, 21 Fla. L. Weekly Supp. 496a, (Fla. 11th Judicial Circuit, March 2014), to be distinguishable. Moreover, in the underlying case, the last line in the Demand Letter clearly gave the Defendant the opportunity to quickly resolve any uncertainty as to “which amount to pay”, which was a central issue in Venus, specifically:
“Should you have any questions or feel that this letter does not meet the statutory requirements of a Demand Letter pursuant to the applicable Florida Statutes, please contact Adam Saben, Esquire upon receipt of this Demand”
The Defendant conceded that this opportunity was not taken.
Therefore, the Court grants Plaintiff’s Motion for Partial Summary Judgment as to the Demand Letter and denies Defendant’s Motion for Summary Judgment as to a Defective Pre-Suit Demand Letter.
