26 Fla. L. Weekly Supp. 663a
Online Reference: FLWSUPP 2608SAAVInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter is not deficient for failing to account for prior payments by insurer or indicate exact amount owed
DAVID SAAVEDRA, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 2014-16124-SP-25-04. October 2, 2018. Carlos Guzman, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Tamar Hoo-Pagan, Vernis & Bowling of Broward, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER, having come before the Court for hearing on August 16, 2018, on Defendant’s Motion for Final 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 David Saavedra (hereinafter referred as the “Patient”) which occurred on or about July 16, 2010. As a result of the injuries sustained in the automobile accident, the Patient was treated at Professional Medical Building Group, Inc. from July 20, 2010, through November 09, 2010. Professional Medical Building Group, Inc. submitted bills for services rendered to the Plaintiff in a timely manner to the Defendant, State Farm Fire & Casualty Company. The Defendant tendered payment pursuant to the permissive payment methodology.
Soon thereafter, 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 paid pursuant to the terms and conditions of the policy of insurance 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 627.736(10). Defendant position is that Plaintiff’s demand letter is non-compliant in that it “fails to acknowledge the amounts previously paid by State Farm. In addition, the demand letter demands an amount far in excess of what could be due and owing.”
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).
Therefore, it is ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby DENIED.
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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).
