26 Fla. L. Weekly Supp. 983a

Online Reference: FLWSUPP 2612VILAInsurance — Personal injury protection — Demand letter — Sufficiency — PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer — By attaching itemized statement to demand letter, medical provider satisfied statutory condition precedent of section 627.736(10)

CAROLYN MALDONADO-GARCIA, MD, P.A. a/a/o Aimee Vila, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2015-003498-SP-25. January 30, 2019. Linda Diaz, Judge. Counsel: Jocelyn Paiz, Shuster & Saben, Miami, for Plaintiff. Jori A. McKain, Cole, Scott & Kissane, P.A., Miami, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT AS TOCOMPLIANCE WITH F.S. 627.736 (10) (DEMAND LETTER)

THIS CAUSE came before the Court for hearing on January 8, 2019 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on compliance with Florida Statute §627.736 (10). The facts are not in dispute and the parties agreed that the issue is purely an issue of law. The Court, having reviewed the motions and entire Court file, read relevant legal authority, heard argument, and been sufficiently advised in the premises, finds as follows:

BACKGROUND

This is a matter for unpaid personal injury protection benefits. The Plaintiff timely submitted bills for services rendered on three dates of service: April 7, 2011, May 3, 2011 and June 23, 2011. The Defendant, State Farm Mutual Automobile Insurance Company, either reduced or denied payment for the CPT Codes at issue. Prior to filing the instant lawsuit, Plaintiff submitted a Pre-suit Demand Letter pursuant to Florida Statute §627.736(10). Plaintiff attached the bills at issue to the Demand Letter. The Defendant’s position is that Plaintiff failed to account for prior payments issued by State Farm Mutual Automobile Insurance Company in its Demand Letter and as a result has failed to strictly comply with Florida Statute §627.736(10).

LEGAL ANALYSIS

The requirements of Florida Statute §627.736(10) clearly and unambiguously state:

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 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 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 (emphasis added).

A plain reading of the statute shows that if the Plaintiff attaches an itemized statement to its Pre-suit Demand Letter, it has complied with the requirement of the condition precedent. In this case, there is no question that the Plaintiff attached an itemized statement 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 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 stating each exact amount for each date of service, it complied with the requirements of Florida Statute §627.736(10). See, MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].

This Court rejects the Defendant’s notion that a demand letter must indicate the prior payments made by the Defendant as there is no language in Florida Statute §627.736(10) requiring the Plaintiff to calculate prior payments made.¹ As the payor, the Defendant is acutely aware of its prior payments. 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 of information that it may not have, to wit: bills for dates of service that may have been inadvertently unaccounted for by the Defendant with the Plaintiff’s initial billing.” St. Johns Medical Ctr. a/a/o Melissa Brown v State Farm Mut. Auto. Ins. Co, 22 Fla. L Weekly Supp. 457a. (Fla. Duval Cty. Ct. October 22, 2014); See also Oasis Diagnostic Center, Inc a/a/o Ania Roque v State Farm Fire & Casualty Co, 25 Fla. L. Weekly Supp. 976a (Fla. Miami-Dade Ct. Ct., Dec. 21, 2017).

The Defendant’s position is that the Plaintiff failed to “strictly comply” with the condition precedent because it failed to properly account and calculate all prior payments made or enumerate the “exact amount owed.” This Court notes that those arguments are not supported by a plain reading of Florida Statute §627.736(10) and that this Court as well as sister Courts have summarily rejected this argument. See, La Familia Medical Center a/a/o Luis Gato v. State Farm Mutual Automobile Insurance Company, 26 Fla. L. Weekly Supp. 37a (Fla. Miami-Dade Cty. Ct., March 13, 2018); Alternative Medical Center of Florida, Inc. a/a/o Lideisy Rios v. State Farm Mutual Automobile Insurance Company (Fla. Miami-Dade Cty. Ct., March 13, 2018); Saavedra, David v. State Farm Fire & Casualty Company, 26 Fla. L. Weekly Supp. 663a (Fla. Miami-Dade Cty. Ct., October 2, 2018); Professional Medical Building Group, Inc a/a/o Luisa R. Grasset v. State Farm Mutual Automobile Insurance Company, 25 Fla. L. Weekly Supp. 473a (Fla. Miami-Dade Cty. Ct., July 18, 2017); Kadosh Medical Services, Inc. a/a/o Davila Perez v. State Farm Fire & Casualty Company, 19 Fla. L. Weekly Supp. 207b (Fla. Miami-Dade Cty. Ct., June 7, 2011); Ultra Care & Diagnostic, Corp. a/a/o Yania Rodriguez v. MGA Insurance Company, Inc., 20 Fla. L. Weekly Supp. 185b (Fla. Miami-Dade Cty. Ct., October 1, 2012); A.C. Rehabilitation Center, Inc. (Anisleydis Rivero) v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 890a (Fla. Miami-Dade Cty. Ct., Mar. 16, 2012); Oasis Diagnostic Center, Inc. (Ania Roque) v. State Farm Fire and Casualty Co., 25 Fla. L. Weekly Supp. 976a (Fla. Miami-Dade Ct. Ct., Dec. 21, 2017); EBM Internal Medicine a/a/o Jasmine Gaskin v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 382a (Fla. Duval Cty. Ct. Dec. 9, 2011) (finding no requirement to include prior payments made or exact amount owed in a demand letter); also see, First Coast Medical Center, Inc. a/a/o Barbara Derouen, 17 Fla. L. Weekly Supp. 118a (Fla. Duval Cty. Ct. November 12, 2009); EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Fla. Duval Cty. Ct. February 8, 2012); Neurology Partners, P.A., d/b/a Emas Spine & Brain a/a/o Scott Bray v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 101b (Fla. Duval Cty. Ct. August 7, 2014); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Wendy Brody v. State Farm Mutual Automobile Insurance Company, (Case No.: 2012-SC-4885, Fla. Duval Cty. Ct. July 23, 2014); and, Physicians Medical Centers Jax, Inc. a/a/o Melanie Wrenn v. State Farm Mutual Automobile Insurance Company, (22 Fla. L. Weekly Supp. 359a (Fla. Duval Cty. Ct. August 25, 2014). In fact, this Court previously ruled that attaching an itemized statement with the requisite information to adjust a claim satisfies the statutory condition precedent of Florida Statute §627.736(10). See, La Familia Medical Center a/a/o Luis Gato v. State Farm Mutual Automobile Insurance Company, 26 Fla. L. Weekly Supp. 37a (Fla. Miami-Dade Cty. Ct., March 13, 2018).

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). 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 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 Pre-suit Demand Letter. 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). Therefore, Defendant’s position is unsupported by binding case precedent and, if accepted, would result in an undue burden on access to courts.

As such, this Court finds no reason to depart from its prior ruling and finds that the Plaintiff complied with the requirements of Florida Statute §627.736(10).

Accordingly, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Motion for Summary Judgment is DENIED.

__________________

¹Taking a “strict construction” of the applicable statute, the Court notes that there is no language contained therein that requires that. . .a Demand Letter reflect prior payments made by the insurer. Kadosh Medical Srv., Inc. a/a/o Davila Perez v State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 207b (Fla. Miami-Dade Cty. Ct., June 7, 2011).