26 Fla. L. Weekly Supp. 594b
Online Reference: FLWSUPP 2607MCDONOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 744aInsurance — Personal injury protection — Voluntary dismissal — Timeliness — Medical provider’s notice for voluntary dismissal entered at hearing after court denied motion for continuance but before beginning of argument on insurer’s motion for summary judgment was timely entered prior to hearing on motion for summary judgment — Attorney’s fees — Timely voluntary dismissal deprived court of jurisdiction to adjudicate motion for summary judgment based on defective demand letter but did not deprive it of jurisdiction to entertain motion for section 57.105 sanctions — Where amount owed alleged in demand letter was far in excess of coverage available under policy and differed from attached ledger and jurisdictional amount pled in complaint, provider’s counsel knew or should have known that letter did not satisfy condition precedent to filing suit, and insurer is entitled to award of attorney’s fees
BAIN COMPLETE WELLNESS, LLC, as assignee of Kerri McDougald, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-028803, Division: I. September 11, 2018. Joelle Ann Ober, Judge. Counsel: Xavier Jackman, for Plaintiff. Steven B. Farkas, for Defendant.
REHEARING DENIED FLWSUPP 2708KMCD
ORDER on Costs FLWSUPP 2708MCDO
ORDER DENYING PLAINTIFF’S MOTION FOR CONTINUANCE,ORDER DEEMING DEFENDANT’S MOTION FORSUMMARY JUDGMENT MOOT,ANDORDER GRANTING DEFENDANT’S MOTION FOR SANCTIONSPURSUANT TO FLORIDA STATUTES SECTION 57.105
THIS MATTER came before this Court at a hearing on June 21, 2018, on Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand filed December 1, 2016 and Defendant’s Motion for Sanctions Pursuant to Florida Statute § 57.105 (Failure to Serve Pre-Suit Demand) filed April 11, 2017. Additionally, prior to hearing argument on Defendant’s Motions, the Court allowed argument on Plaintiff’s Motion for Continuance filed June 20, 2018. Having reviewed and considered all motions pending before the Court, argument of counsel for the parties, relevant case law, and being otherwise fully advised, the Court finds:
PROCEDURAL HISTORY
1. Plaintiff filed the Complaint in this action on August 30, 2016 seeking damages relative to “unpaid and overdue Personal Injury Protection (PIP) benefits and interest thereon in an amount less than $99.00, exclusive of attorneys’ fees, additional interest, and costs.”
2. The demand letter at issue in this matter was dated May 6, 2016. The dates of service at issue were indicated to be September 14, 2015 — March 29, 2016. The amount claimed to be owed was $36,215.09, which appears to have been derived by subtracting the amount paid — $367.82 — from the total charges of $36,582.91. The demand letter also included an assignment of benefits and a billing ledger listing the dates of service, a current patient balance of $0, a current insurance balance of $29,091.54, and a current account balance of $29,091.54.
3. Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand and its Motion for Sanctions relative to the demand letter issue were set for hearing on June 21, 2018 at 2:00 p.m.
4. On June 20, 2018, Plaintiff filed a Motion for Continuance and Defendant filed a Response in Opposition to Plaintiff’s Motion.
5. At the June 21, 2018 hearing, the Court first allowed argument relative to Plaintiff’s June 20, 2018 Motion for Continuance and Defendant’s Response in Opposition.
6. Immediately following this Court’s denial of Plaintiff’s Motion for Continuance, Plaintiff made an ore tenus notice of voluntary dismissal of the case. Defendant objected to the voluntary dismissal arguing it was untimely. The Court reserved ruling on the issue and allowed argument on the Defendant’s Motions to proceed.
PLAINTIFF’S MOTION FORCONTINUANCE AND ORE TENUS DISMISSAL
7. Having considered the arguments of Plaintiff’s counsel and Defendant’s response in opposition relative to Plaintiff’s Motion for Continuance, Plaintiff’s Motion for Continuance is hereby denied.
8. The Court recognizes that the right of the Plaintiff to voluntarily dismiss its action is generally quite broad, but is subject to the limitations contained in Florida Rule of Civil Procedure 1.420. See Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013) [38 Fla. L. Weekly S168a].
9. Florida Rule of Civil Procedure 1.420(1) provides that “an action . . . may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment.”
10. Although the Defendant argues that the June 21, 2018 hearing scheduled to begin at 2:00 p.m. on Defendant’s Motion for Summary Judgment had begun, the Court finds that the actual hearing, specifically the argument, on the Motion for Summary Judgment itself had not begun at the time Plaintiff announced its voluntary dismissal.
11. As such, the Court finds that the Plaintiff’s voluntary dismissal following the ruling on Plaintiff’s Motion for Continuance, but prior to the beginning of argument on the Motion for Summary Judgment, was permissible under rule 1.420(1). This action was thus voluntarily dismissed thereby terminating the litigation and depriving the Court of jurisdiction to adjudicate the case on the merits.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENTFOR FAILURE TO SERVE A STATUTORILY COMPLIANTPRE-SUIT DEMAND
12. The Court finds that Plaintiff’s voluntary dismissal announced prior to the beginning of argument on Defendant’s Motion for Summary Judgment deprived this Court of jurisdiction to adjudicate the merits of Defendant’s Motion.
13. As such, Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand is hereby deemed moot.
DEFENDANT’S MOTION FOR SANCTIONSPURSUANT TO FLORIDA STATUTE §57.105(INVALID DEMAND LETTER)
14. Although, the Court is without jurisdiction to adjudicate Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand in light of Plaintiff’s voluntary dismissal as outlined above, the Court retains jurisdiction to entertain Defendant’s Motion for Sanctions under Florida Statutes section 57.105 in this matter. See Pino, 121 So. 3d at 41 (stating “[a] notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under section 57.105 . . . even after a voluntary dismissal”).
15. Defendant’s Motion for Sanctions is premised on the same facts and legal argument made in Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand. As such, the Court heard the argument on this issue at the June 21, 2018 hearing.
16. With regard to pre-suit demand letters, Florida Statutes section 627.736(10) provides in pertinent part:
(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:
* * *
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 . . . 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. . . .
17. The Thirteenth Judicial Circuit Court, in its appellate capacity, has ruled on the issue of specificity with respect to demand letters required under section 627.736(10). Specifically, in Chambers Medical Group, Inc. v. Progressive Express Insurance Company, the Court held that a medical provider must strictly comply with the requirements of section 627.736(10). 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. Ct. (appellate) Dec. 1, 2006). The Chambers court concluded that “strict compliance with the notice requirements is required to effect the purpose of the statute.” Id. Further, “[i]naccurate, misleading, illegible or stale information contained in a demand does not strictly comply with the statutory requirements.” Id. This Court is bound by the decision in Chambers and is required to apply the strict compliance standard with regard to pre-suit demand letters under section 627.736(10).
18. The Court finds that Plaintiff’s demand letter does not comply with the strict compliance standard set forth in Chambers and does not satisfy the condition precedent to suit set forth in section 627.736(10).
19. Here, the Plaintiff’s pre-suit demand letter claimed the amount owed was $36,215.09, an amount far in excess of coverage available under the policy. Additionally, the amount demanded conflicted with the attached billing ledger showing a patient balance of $0 and an insurance and account balance of $29,091.54. The Court also notes that the amount claimed due in the demand letter is vastly different than the jurisdictional amount pled in the Complaint. As such, the demand letter with the enclosed ledger did not provide proper notice of the amount sought, was inaccurate and misleading, and therefore, did not comply with the requirements of section 627.736(10).
20. The Court finds that Defendant served the requisite 21-day safe harbor letter on March 14, 2017. The Plaintiff did not dismiss this action within the safe harbor period. Defendant filed its Motion for Sanctions Pursuant to Florida Statute § 57.105 (Failure to Serve Pre-Suit Demand) on April 11, 2017.
21. The Court finds that Plaintiff’s counsel knew or should have known that the pre-suit demand letter sent in this matter did not comply with the statutory requirements, and as such, Plaintiff had not complied with a condition precedent to the filing of this action.
22. As such, the Court finds the Defendant is entitled to attorney’s fees pursuant to Florida Statutes section 57.105(1).
Based on the foregoing, it is therefore ORDERED AND ADJUDGED
A. Plaintiff’s Motion for Continuance filed June 20, 2018 is hereby DENIED.
B. Plaintiff’s ore tenus voluntary dismissal is hereby GRANTED and this matter is dismissed.
C. Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand is MOOT in light of the voluntary dismissal of this action.
D. Defendant’s Motion for Sanctions Pursuant to Florida Statute §57.105 (Invalid Demand Letter) is hereby GRANTED. The Court reserves jurisdiction to determine the amount and allocation of the attorney’s fee and cost award pending an evidentiary hearing on same.
