26 Fla. L. Weekly Supp. 518a

Online Reference: FLWSUPP 2606LOZAInsurance — Personal injury protection — Demand letter — Validity — No merit to insurer’s contention that demand letter sent before medical provider had responded to insurer’s request for additional documentation of claim was premature where request for documentation was made more than 30 days after insurer’s receipt of provider’s bills — No merit to argument that bills failed to give notice of covered loss and trigger 30-day requirement to pay because they were not accompanied by supporting medical records — Argument that demand letter was deficient for failing to account for payments made by insurer fails where insurer failed to present evidence that provider received any payments before sending letter — Where insurer paid some of charges included in demand letter, provider was not required to send second demand letter before filing suit for those charges that were denied or reduced — No merit to argument that demand letter was invalid for being sent to wrong insurer and naming person previously named to receive demand letters rather than currently designated person where letter was sent to insurer’s umbrella company, which processes insurer’s demand letters, and there is no question that letter was actually received and timely responded to be insurer

INJURY TREATMENT CENTER OF FORT MYERS, INC., a/a/o Lozano-Quintero, Francisco, v. GARRISON PROPERTY & CASUALTY INSURANCE COMPANY. County Court, 15th Judicial Circuit, in and for Palm Beach County. Case No. 50-2016-SC-013141-XXXXSB RS. June 21, 2018. Robert Panse, Judge. Counsel: Robert A. Trilling, Boca Raton, for Plaintiff. Billie Brock, Dutton Law Group, P.A., Fort Lauderdale, for Defendant.ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT REGARDINGDEFECTIVE PRE-SUIT DEMAND LETTERS

THIS CAUSE, having come to be heard upon Defendant’s Motion for Summary Judgment Regarding Defective Pre-Suit Demand Letters, and the Court, having considered the Affidavits, depositions and other evidence submitted, having heard argument of counsel, and being otherwise fully advised, hereby ORDERS:

This is an action for, inter alia, overdue and unpaid Personal Injury Protection (PIP) insurance benefits.

Background: The undisputed facts of this case are as follows: On October 19, 2015, Francisco Lozano-Quintero was involved in an automobile accident in which he sustained injuries. Plaintiff, Injury Treatment Center of Fort Myers, Inc. (hereinafter, “Plaintiff”), provided medical treatment to Francisco Lozano-Quintero as a result of injuries sustained in the automobile accident. Mr. Lozano-Quintero was covered under an automobile policy of insurance issued by GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter “GARRISON” or “Defendant”). Mr. Lozano-Quintero assigned his Personal Injury Protection insurance benefits (hereinafter “PIP” benefits) to Plaintiff, and Plaintiff billed DEFENDANT for payment of the medical treatment it provided.

Motion for Summary Judgment: On February 13, 2018, Defendant filed its Motion and Memorandum of Law for Summary Judgment Regarding Defective Pre-Suit Demand Letters, the issues of which are as follows:

I. WHETHER PLAINTIFF’S DEMAND WAS PREMATURE:

Defendant argued that Plaintiff’s pre-suit Demand was premature, as it was sent less than 30 days before payment on the bills were overdue. Specifically, Defendant’s Motion alleges that Defendant requested additional information which it alleged tolled the time to pay Plaintiff’s bills, that Plaintiff had not provided the requested documentation, that the time for payment on Plaintiff’s bills continued to be tolled as of the date of Plaintiff’s pre-suit Demand, and that payment on Plaintiff’s bills was therefore not overdue by more than 30 days as of the time of Plaintiff’s pre-suit Demand.

Florida Statutes 627.736(4)(b) states:

(b) Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after written notice is furnished to the insurer.

F.S. 627.736(6)(b) provides the Defendant with the means to request additional documentation and, if requested timely, will toll the time within which payment must be made:

If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.

(F.S. 627.736(b); emphasis added.)

The uncontroverted evidence is that the pertinent bills were received by the Defendant on November 2, November 3 and November 6, 2015. Per F.S. 627.736(4)(b), payment on these bills would be overdue if not paid within 30 days of their receipt, which would be December 4, 2015 for the bills received on November 2 and November 3, 2015, and December 6, 2015 for the bills received on November 6, 2015.

Defendant’s requests for additional documentation or information would only toll these deadlines to pay Plaintiff’s bills if these requests were made under F.S. 627.736(6)(b), and if they were made within 30 days of Defendant’s receipt of Plaintiff’s bills (i.e., by December 4, 2015 for bills received November 2 and 3, 2015, and by December 6, 2015 for bills received on November 6, 2015). Here, there is no material issue of fact that Defendant did not make its first request for documentation until December 11, 2015.

The Court finds that Defendant did not request additional documentation or information within the thirty days required under F.S. 627.736(6)(b), and that the tolling provision of F.S. 627.736(6)(b) therefore does not apply as a matter of law¹.

At hearing, Defendant also argued that receipt of Plaintiff’s bills without the supporting medical records did not constitute “Notice of a covered loss and amount of same” under F.S. 627.736(5)(d). As a result, the bills submitted did not trigger the “payment within 30 days” provision of F.S. 627.736(4)(b), and Plaintiff’s pre-suit Demand was premature.

F.S. 627.736(5)(d) states:

(d) All statements and bills for medical services rendered by a physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers must, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the CMS 1500 form instructions, the American Medical Association CPT Editorial Panel, and the HCPCS. All providers, other than hospitals, must include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians’ Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General, Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. A statement of medical services may not include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer is not considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph and are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.

(Emphasis added.)

At hearing, and as supported by the evidence presented, Defendant admitted that other than the lack of supporting medical records, the medical bills submitted by the Plaintiff were otherwise in compliance with the billing requirements of F.S. 627.736(5)(d).

The issue presented is whether medical bills completed on the statutorily required forms and otherwise in full compliance with the billing requirements of F.S. 627.736(5)(d) nevertheless fail to give “notice of the amount of covered loss” if the supporting medical records are not also submitted to the insurer.

This Court finds that there is no requirement within F.S. 627.736(5)(d) for the Plaintiff healthcare provider to submit anything other than a bill completed in accordance with the requirements of F.S. 627.736(5)(d). The language of this subsection is clear: “All statements and bills for medical services” are required to be completed as detailed in this subsection. This Court is not empowered to impose additional requirement that are not specified in this statute.

This Court therefore finds that Plaintiff’s bills, properly completed and submitted in accordance with the requirements of F.S. 627.736(5)(d), constituted “Notice of a covered loss and amount of same” as required under F.S. 627.736(4)(b) and (5)(d), as a matter of law. Accordingly, as payment on Plaintiff’s bills was overdue by more than 30 days at the time Plaintiff mailed its pre-suit Demand as required by F.S. 627.736(10), Defendant’s Motion for Summary Judgment on this ground is DENIED.

II. WHETHER PLAINTIFF’S DEMAND FAILED TO ACCOUNT FOR PAYMENTS MADE BEFORE THE DEMAND WAS MAILED:

Defendant argued that Plaintiff’s pre-suit Demand of January 8, 2016, failed to account for Defendant’s payment for CPT Code 99244 for date of service 10/26/2015, and therefore did not satisfy the statutory requirements of F.S. 627.736(10).

Before addressing whether such failure would constitute a fatal deficiency under F.S. 627.736(10), this Court finds that Defendant failed to present any evidence that payment for the subject service was received by Plaintiff prior to Plaintiff’s mailing of its pre-suit Demand (or even that such payment was actually mailed to the Plaintiff prior to Plaintiff mailing its pre-suit Demand).

Plaintiff presented the deposition testimony of its Corporate Representative, Alexander Williams, who testified that Defendant’s payment of benefits toward CPT Code 99244 for date of service 10/26/2015 was not received until February 11, 2016, almost a month after Plaintiff mailed its pre-suit Demand. Defendant offered no evidence contradicting the date its payment was received, nor did Defendant offer any evidence of the date it mailed its check for this service.

As Defendant presented no evidence that any payment was actually received prior to Plaintiff mailing its pre-suit Demand, this Court concludes that Plaintiff’s pre-suit Demand did not fail to account for any payments received prior to the mailing of the Demand, as a matter of law. Defendant’s Motion for Summary Judgment that the pre-suit Demand was defective for failure to account for payments received prior to the mailing of Plaintiff’s pre-suit Demand is therefore DENIED.

III. WHETHER PLAINTIFF WAS REQUIRED TO SUBMIT A SECOND PRE-SUIT DEMAND LETTER ACCOUNTING FOR PAYMENTS MADE IN RESPONSE TO PLAINTIFF’S PRE-SUIT DEMAND LETTER, PRIOR TO FILING THE INSTANT ACTION:

The evidence conclusively established that Plaintiff’s pre-suit Demand included multiple dates of service, each with multiple individual charges. Defendant responded to Plaintiff’s pre-suit Demand with reduced payments toward some of the charges, and with denials of other charges. Thereafter, Plaintiff filed this action seeking additional money for some of the charges that were either denied or reduced, claiming that additional insurance benefits were due toward those specific charges.

Defendant argues that, as the pre-suit Demand letter included services that were not included in the instant action, and as the amount demanded was in excess of the additional insurance benefits sought to be recovered in this action, that the Demand letter failed to provide the notice of the amount to be paid to avoid this litigation, in violation of F.S. 627.736(10), and/or that Plaintiff was required to send another Demand letter specifying only those charges upon which it intended to file suit.

The requirements for pre-suit Demands are detailed in F.S. 627.736(10), “Demand Letter.” F.S. 627.736(10)(b) provides the specific requirements of the pre-suit demand letter, and states:

(b) The notice must state that it is a “demand letter under s. 627.736” and state with specificity:

. . .

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.

(Emphasis added.)

Here, there is no material issue of fact that Plaintiff’s pre-suit Demand letter included the itemized statement required by F.S. 627.736(10)(b)(3). The issue argued by Defendant is that, where the pre-suit demand included services and amounts that are not the actual subject of the suit ultimately filed as a result of a pre-suit Demand, the pre-suit Demand is not in compliance with the requirements of F.S. 627.736(10)(b) as it failed to apprise the insurer of the amount it could pay to avoid litigation.

This court finds that if a healthcare provider submitted an otherwise-compliant pre-suit Demand, there is no requirement that the provider must include in its suit each and every charge listed in its pre-suit Demand letter. In the instant case, Defendant issued payment toward some of the charges listed in Plaintiff’s pre-suit Demand. Under Defendant’s analysis, F.S. 627.736(10) would require Plaintiff to either (1) include in its suit all of the services listed in its pre-suit Demand, including those services that Plaintiff agrees were subsequently paid correctly in response to its Demand, or (2) submit a second pre-suit demand listing only the services listed in the first pre-suit demand that were not paid correctly in response to the first Demand.

F.S. 627.736(10) imposes a requirement for one, and only one, pre-suit demand letter as a pre-requisite for suit on any or all of the charges listed on the demand. As Plaintiff’s pre-suit Demand was in compliance with F.S. 627.736(10), and as the charges at issue in this action were included in Plaintiff’s pre-suit Demand letter, this Court concludes that Plaintiff was not required to submit a second demand letter prior to filing this action, as a matter of law. Defendant’s Motion for Summary Judgment for failure to provide notice within Plaintiff’s pre-suit Demand letter as to the amount to be paid to avoid litigation is DENIED.

IV. WHETHER PLAINTIFF’S PRE-SUIT DEMAND WAS INVALID FOR BEING ADDRESSED TO THE WRONG INSURER AND/OR NAMING A PRIOR DESIGNATED PERSON:

Defendant argued that Plaintiff’s Pre-Suit Demand was defective as it was addressed to the wrong insurance company and was addressed to a person previously designated as the person to whom Demand letters were to be mailed (rather than the person then-currently designated as the person to whom Demand letters were to be mailed).

The evidence submitted by both parties established that USAA Insurance Company (hereinafter “USAA”) is the umbrella company for Defendant Garrison Property and Casualty Insurance Company (hereinafter “Garrison”), that USAA and Garrison both use the same business and mailing address, and that USAA and Garrison both designated the same person and mailing address as the “person and address specified by the insurer for the purposes of receiving notices” under F.S. 627.736(10).

The evidence further established that Defendant’s umbrella company USAA employed the claims adjuster responsible for adjusting this Garrison claim (Ms. Holobyn), and that, although Plaintiff’s pre-suit Demand was addressed to “USAA Casualty Insurance” to the attention of Alan Bunge (the person previously designated to receive pre-suit Demands, but not the person so designated as of the date of Plaintiff’s demand), Defendant’s representative testified via Affidavit that Plaintiff’s pre-suit Demand “was received by Garrison on January 15, 2016.” Defendant’s representative further testified that, in response to Plaintiff’s Demand, “payment was issued for the other (b)ills submitted with interest, penalty and postage” on February 11, 2016.

There is no material issue of fact that Plaintiff’s pre-suit Demand was received by Defendant, was timely responded to by Defendant, that Defendant issued payment of benefits and interest within 30 days of its receipt of the Demand in compliance with F.S. 627.736(10)(d), and that Defendant also paid the 10% penalty and postage required by F.S. 627.736(10)(d)².

This Court finds that Defendant’s umbrella company, USAA, had its employees processing Defendant’s pre-suit Demands, that the umbrella company had the same address as Defendant, and that the umbrella company and the Defendant both designated the same person and mailing address for the purpose of receiving pre-suit Demands.

There is no issue of fact that Plaintiff’s Demand, addressed to Defendant’s umbrella company, was sent to the correct location and was actually received and responded to by Defendant. Despite the formal change in the person designated to receive pre-suit Demands, there is no evidence demonstrating any prejudice to the Defendant by the Demand having named the prior person so designated. To the contrary, the evidence conclusively established that Defendant received and responded to Plaintiff’s Demand, that within the 30 days mandated by F.S. 627.736(10) Defendant paid some benefits and interest in response to Plaintiff’s Demand, and that Defendant also paid the 10% penalty and postage that is only required in response to pre-suit Demands under F.S. 627.736(10(d).

This Court finds that, under the facts of this case, Plaintiff’s pre-suit Demand satisfied the statutory requirements of F.S. 627.736(10), as a matter of law.

Accordingly, Defendant’s Motion for Summary Judgment Regarding Defective Pre-Suit Demand Letter is DENIED.

__________________

¹As this Court concluded in open Court that Defendant’s first request for documentation was not timely, the Court did not reach the issue of whether Defendant’s request constituted a “written request for documentation or information under this paragraph” as required under F.S. 627.736(6)(b).

²The Court notes that there is no requirement for the payment of a 10% penalty or postage anywhere in the No-Fault Statute other than in response to a pre-suit Demand under F.S. 627.736(10)(d).