25 Fla. L. Weekly Supp. 473a

Online Reference: FLWSUPP 2505GRASInsurance — Personal injury protection — Demand letter — Sufficiency — PIP statute does not require that demand letter account for prior payments made by insurer or to state exact amount owed by insurer — Duplicate billing for some CPT codes in demand letter does not render letter defective where insurer was fully aware that CPT codes were duplicates — Insurer waived any deficiencies in demand letter by failing to raise issue before suit was filed — Language in insurer’s response to demand letter that purports to reserve right to raise any defenses concerning validity of letter is mere boilerplate and did not place provider on notice of issue with demand letter with any specificity

PROFESSIONAL MEDICAL BUILDING GROUP, INC. a/a/o Luisa R. Grasset, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No.2013-16300-SP-25-04. July 18, 2017. Carlos Guzman, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Blake Partridge, Kirwan Spellacy & Danner, for Defendant.

ORDER GRANTING PLAINTIFFS MOTION FORPARTIAL SUMMARY JUDGMENTREGARDING DEMAND LETTER COMPLIANCE

THIS MATTER, having come before the Court for hearing on May 4, 2017, on Plaintiff’s Motion for Partial Summary Judgment regarding Demand Letter Compliance, 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 Luisa R. Grasset (hereinafter referred as the “Patient”) which occurred on or about December 13, 2012. As a result of the injuries sustained in the automobile accident, the Patient was treated at Plaintiff’s facility from December 20, 2012, through April 9, 2013. The Plaintiff submitted bills for services rendered to the Patient in a timely manner to the Defendant, State Farm Mutual Automobile Insurance Company.

The Defendant tendered payment pursuant to the permissive payment methodology. A demand letter was submitted on behalf of the Plaintiff. The Defendant responded to the demand letter and indicated that no further payment will be forthcoming as it has paid pursuant to the terms and conditions of the policy at issue. As such, the Plaintiff filed suit against the Defendant. The Defendant, by way of its Answer and Affirmative Defenses, alleges that the Plaintiff has failed to comply with Florida Statute 6273.736(10). Specifically, the Defendant states that “the Plaintiff has not filed a proper demand letter pursuant to Florida Statute 627.736(10), and therefore has not complied with the conditions precedent to the bringing of this lawsuit.” Defendant position is that Plaintiff’s demand letter fails to take into account payments made by the Defendant; fails to specify the amount at issue and includes duplicate billing for December 18, 2013 for CPT Codes 97010; 97014; 97035; 97124 and 97018. In response, the Plaintiff has filed its Motion for Summary.

ANALYSIS

The requirements of F.S. §627.736(10), which are clear and unambiguous, are as follows:

(10) 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 must state that it is a “demand letter under s. 627.736” and 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. . .

The facts in this case are not in dispute. The Plaintiff attached to its PDL a ledger that constitutes the itemized statement. The itemized statement contained the relevant information to allow the Defendant to see the exact dates of service at issue, the CPT codes at issue, the exact charges for those codes and the description of the treatment, service, or accommodation provided. This Court rejects Defendant’s notion that a demand letter must indicate the prior payments made by the Defendant as a plain reading of the statute fails to indicate any requirement to include prior payments made. Moreover, 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 to wit.” St. Johns Medical Ctr. a/a/o Melissa Brown v State Farm Mut. Auto. Ins. Co., 22 Fla. L Weekly Supp. 457a.

Additionally, this Court rejects the Defendant’s notion that a demand letter must indicate the exact amount owed. There is no language contained in Fla. Stat. 627.736(10) that requires a party to compute the “exact amount owed”. 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, it complied with the requirements of § 627.736. The Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant 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 MedPay 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.¹ 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].

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 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 Apostilico 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, Apostilico, 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).

This Court is also not persuaded by Defendant’s argument that the demand letter is defective based on the premise that it includes duplicate billing for December 18, 2013 for CPT Codes 97010; 97014; 97035; 97124 and 97018. The mathematical inconsistencies as to the total amount billed is of no effect as the Defendant was fully aware that these CPT Codes were duplicates. To rule otherwise would allow an insurance carrier to look for any technical defect or miscalculation as a ground to attack an otherwise compliant demand letter, especially when the itemized statement already contains the information needed to evaluate the claim. Robert J. Indelicato, D.C. a/a/o Ruby Kish v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 184b.

Finally, the Defendant waived any deficiencies contained within Plaintiff’s demand letter by not raising any issue with the demand letter until after litigation was initiated. A review of the Defendant’s demand letter response shows no language contained therein taking issue with any of the alleged deficiencies which has been raised by the Defendant. It is incumbent upon the insurer to put the Plaintiff on notice as to any alleged deficiencies to allow the Plaintiff the opportunity to make any corrections as to any alleged deficiency. This rational supports public policy which is to curtail litigation and promote resolution early in the claims process. The Defendant points to the last sentence in its demand letter response, which states “We reserve our right to raise any defenses concerning the validity of the demand letter or any other defenses that relate to this claim for No-Fault benefits” as putting the Plaintiff on notice. The Court finds that this language is mere “boilerplate” and does not place the Plaintiff on notice, with any specificity, as to what is at issue with its PDL.

Therefore, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.

__________________

¹See EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 410a holding that with the various factors that must be considered by the carrier when determining the exact amount to pay on a claim, and the fact that this information is readily available to the carrier and virtually never readily available to the medical provider submitting a claim, it is not reasonable to expect the provider to know the “exact amount owed” since said amount could vary amongst PIP applicants (depending on the language of each individual policy).