26 Fla. L. Weekly Supp. 37a

Online Reference: FLWSUPP 2601GATOInsurance — Personal injury protection — Demand letter — Sufficiency — PIP statute does not require that demand letter account for prior payments made by insurer — Holding litigants to high standard for demand letter specificity suggested by insurer would result in denial of access to courts

LA FAMILIA MEDICAL CENTER a/a/o Luis Gato, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. General Jurisdiction Division. Case No. 2017-01685 SP 25 (1). March 13, 2018. Linda Diaz, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. David Bronstein, Bronstein & Carmona, P.A., Ft. Lauderdale, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENTREGARDING DEMAND LETTER COMPLIANCE

THIS MATTER, having come before the court for hearing on March 6, 2018, on Cross Motions for 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 having been sufficiently advised in the premises, finds as follows:

FACTUAL BACKGROUND

This matter originates from an automobile accident involving Luis Gato (hereinafter referred as the “Patient”) which occurred on or about July 16, 2016. As a result of the injuries sustained in the automobile accident, the Patient was treated at Plaintiff’s facility. The Plaintiff submitted bills for services rendered to the Patient in a timely manner to the Defendant, State Farm Mutual Automobile Insurance 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 has paid pursuant to the terms and conditions of the policy 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 6273.736(10). Specifically, the Defendant states that “Plaintiff submitted a listing of all charges for services allegedly rendered without accounting for payments already made by Defendant on Plaintiff’s claim in the amount of $3,780.67 for dates of service July 19, 2016 through August 8, 2016.” Defendant position is that Plaintiff’s demand letter fails to take into account payments made by the Defendant and as a result has failed to comply with Fla. Stat. 627.736(10). In response, the Plaintiff has filed its Motion for Summary.

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. . .

This Court rejects Defendant’s notion that a demand letter must indicate the prior payments made by the Defendant as there is no language in Fla. Stat. 627.736(10) requiring the Plaintiff to calculate prior payments made.¹ As a 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 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. See also Professional Medical Building Group, Inc. a/a/o Luisa Grasset v. State Farm Mut. Auto. Ins. Co., 22 Fla. L Weekly Supp. 463a.

The Court is not free to edit statutes or 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]. 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.

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 Apostolico 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).

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

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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 Srvc., Inc. a/a/o Davila Perez v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 207b