26 Fla. L. Weekly Supp. 119b
Online Reference: FLWSUPP 2602PERRInsurance — Personal injury protection — Demand letter — Sufficiency — By attaching itemized statement to demand letter, medical provider satisfied requirements of section 627.736(10) — Further, insurer waived right to raise defense of defective demand letter by failing to raised alleged deficiencies in letter before suit was filed
FLORIDA INJURY KISSIMMEE, LLC, a/a/o Avonda Perry, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION aka USAA, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-SC-002790-O. April 13, 2018. Eric H. DuBois, Judge. Counsel: Annette M. Castillo, Hallandale Beach, for Plaintiff. Kimberly A. Sanderfer, Tampa, for Defendant.
ORDER DENYING DEFENDANT’SMOTION FOR SUMMARY JUDGMENTAND MEMORANDUM OF LAW — FAILURE TO SERVEA STATUTORILY COMPLAINT PRE-SUIT DEMAND
THIS CAUSE having come before the Court on March 13, 2018 for hearing on Defendant’s Motion for Summary Judgment and Memorandum of Law — Failure to Serve a Statutorily Compliant Pre-Suit Demand. The Court, having reviewed Defendant’s Motion for Summary Judgment, the record, having heard arguments of counsel and being otherwise fully advised in the premises, the Court finds as follows:
BACKGROUND
This case arises out of a claim for Personal Injury Protection (“PIP”) benefits as a result of an automobile accident occurring on January 18, 2015. Defendant issued a policy of insurance which included $10,000.00 in PIP benefits which did inure to the benefit of Avonda Perry (“Claimant”) and was in full force and effect at all times relevant to the accident occurring on January 18, 2015.
Following the accident, Claimant presented to Florida Injury Kissimmee from January 20, 2015 through February 23, 2015 and received treatment for injuries sustained in the January 18, 2015 accident. Claimant executed an Assignment of Benefits (“AOB”). Plaintiff billed Defendant for the treatment rendered to Claimant and Defendant issued payment to Plaintiff. Plaintiff then made a demand upon Defendant for additional payment pursuant to the policy. Defendant did not make any additional payments in response to Plaintiff’s demand. Plaintiff subsequently filed the instant suit on February 18, 2016.
Defendant filed its Answer and Affirmative Defenses in which they plead Plaintiff failed to serve a proper and legally compliant demand letter prior to the initiation of the instant action. On February 1, 2017, Defendant filed its Motion for Summary Judgment and Memorandum of Law — Failure to Serve a Statutorily Compliant Pre-Suit Demand (the “Motion”). Defendant’s Motion alleged Plaintiff’s pre-suit demand letter failed to comply with Florida Statute 627.736(10) because the patient ledger attached to the pre-suit demand letter listed a different amount due by the insurer than the amount demanded by the pre-suit demand letter. Defendant argued that because none of the amounts reflected on the last page of the patient ledger matched the amount listed on the pre-suit demand letter, the letter failed to meet the requirements of §627.736(10), Fla. Stat. Defendant further argued the pre-suit demand letter was invalid because there was no way for Defendant to determine how much to pay in order to avoid litigation. Plaintiff argued §627.736(10), Fla. Stat., makes no requirement the pre-suit demand letter calculate an exact amount. Further, the Defendant admitted in its Motion and in its response to Plaintiff’s demand letter that Defendant was able to review the claim and make the determination no further payment would be issued. Plaintiff additionally argued Defendant waived any argument as to the validity of the pre-suit demand letter when it failed to specifically raise the alleged confusion caused by the patient ledger that was attached and included with the demand letter until litigation commenced.
ANALYSIS
Florida Statute 627.736(10), which is clear and unambiguous, provides:
(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.
The facts in this case are not in dispute. Plaintiff provided Defendant a Demand Letter that included an itemized statement containing the information required by the statute quoted above. The itemized statement sent with Plaintiff’s demand letter included the exact dates of service at issue, the CPT codes at issue, the exact charges for those codes and a description of the type of service, treatment or accommodation provided by Plaintiff. Defendant had an opportunity to review all dates of service, CPT codes and type of treatment billed and based on its review made the determination no additional payment was due. Ultimately, the purpose of the demand letter requirement is to put the insurance carrier on notice of Plaintiff’s intent to initiate litigation and give the insurance carrier a second opportunity to review the charges at issue. As pointed out by the Honorable Carlos Guzman, “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.” 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. 11th Jud. Cir., Cty. Ct.) citing St. Johns Medical Ctr. a/a/o Melissa Brown v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 457a.
As echoed by many courts throughout the State of Florida, the burden to adjust the claim lies with the insurance carrier, not the medical provider. Furthermore, Plaintiff’s demand letter did include an amount owed on the first page of the demand letter, along with a calculation of how the Plaintiff came to that amount. Defendant received Plaintiff’s demand letter and by its own admission, reviewed the claim, including all dates of service and CPT codes, and determined the payment previously issued was correct. Defendant provides this Court with nothing to support its contention that now, it was allegedly confused by the Plaintiff’s itemized statement enclosed with the demand letter and did not know what amount to pay in order to avoid litigation.
CONCLUSIONS OF FACT AND LAW
The standard of review for granting a Motion for Summary Judgment is well-settled. Florida Rule of Civil Procedure 1.510 provides, in pertinent part, that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on the file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Moreover, the rule obligates the trial court draw every favorable inference in favor of the non-moving party. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
This Court finds that Plaintiff’s demand letter complied with all requirements of Fla. Stat. §627.736(10). By attaching the itemized statement to the demand letter, the Plaintiff provided Defendant with all the information necessary in order to review all dates of service, CPT codes billed and the exact charges, or amount due, for each code. Ultimately, the insurance carrier is the only party in a position to know exactly what is owed. The insurance carrier is the only one aware of how much it has paid in total benefits to date, how much and the type of coverage the policy provides for, whether the subject policy includes Medical Payments coverage or a PIP deductible. Many times, a provider is not privy to any of this information until after it has filed suit and commenced discovery. See Neurology Partners, P.A. v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 101b (Fla. Duval Cty. Ct. 2013). See also EBM Internal Medicine a/a/o Bernadette Dorelein v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Fla. Duval, Cty. Ct.).
This Court further finds that by failing to bring the alleged deficiencies in the pre-suit demand letter raised in Defendant’s Motion prior to litigation in response to Plaintiff’s pre-suit demand letter, Defendant waived the right to raise any such defense in this litigation. See Neurology Partners, P.A. v. State Farm Mutual Automobile Insurance Company, 22 Fla. Supp. 101b (Fla. Duval Cty. Ct. 2013), citing United Automobile Ins. Co. v. Perez, 18 Fla. L. Weekly Supp. 31a (Fla. 11th Cir. Ct. 2010) (holding that the insurance carrier waived the defense of a defective demand letter by “failing to raise that easily remedied issued until after suit was filed.”). The Court believes, if the itemized ledger would have caused confusion such that the insurance carrier did not know what amount to pay to avoid litigation, it would have not responded that it was able to review all dates of service and CPT codes and determine the payment previously issued was correct and no further payment was due. Lastly, a reservation of the ability to raise any additional claims or issues or a failure to respond to a demand letter at all, does not give the insurance carrier the option to later raise a defect that could have been easily cured during the “safe harbor” period. To rule as such would only allow insurance carriers to essentially ignore demand letters and then once suit is initiated find any defect in order to have a case dismissed on summary judgment, when the defect might have easily been cured during the 30 day “safe harbor” period and litigation prevented altogether. See Neurology Partners, P.A. v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 101b (Fla. Duval Cty. Ct. 2013). Therefore, since Defendant failed to raise any issue with the alleged deficiencies raised in its Motion, even assuming arguendo Plaintiff’s demand letter was not in compliance with Florida Statute §627.736(10), Defendant waived the defense Plaintiff’s demand letter was confusing by not taking issue with the alleged deficiency prior to the commencement of litigation.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
1. Defendant’s Motion for Summary Judgment and Memorandum of Law — Failure to Serve a Statutorily Compliant Pre-Suit Demand is DENIED.
