26 Fla. L. Weekly Supp. 853a
Online Reference: FLWSUPP 2610CROCInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provides that charge submitted for amount less than 200% of allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer was required to pay entire amount of charges that were less than 200% of allowable amount under fee schedule, not 80% of those charges — Affirmative defenses — Amendment — Motion to amend affirmative defenses to allege failure to strictly comply with presuit demand letter requirement is granted — Demand letter is not defective for failing to specify exact amount insurer will ultimately owe
RON WECHSEL, D.C., INC. d/b/a Wechsel Pain & Rehab Center, (a/a/o Shaterra Crockett), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 18-006068 CONO (70). November 28, 2018. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, PA, Coral Springs, for Plaintiff. George L. Cimballa III, Law Office of George L. Cimballa III, Plantation, for Defendant.
ORDER GRANTING SUMMARY DISPOSITION
THIS CAUSE having been reviewed by the Court on Plaintiff’s motion for summary disposition and various other motions filed by both parties, having heard arguments on November 9, 2018 in this case and nearly 60 other cases, the Court having reviewed the Court file, and the Court otherwise being advised in the premises, the Court hereby finds and Orders and Adjudges as follows,
I. “Billed Amount (BA) Issue”
This Court previously addressed this issue in the matter of Doctor’s Pain Management Group, Inc. (a/a/o Roberto Borrego) v. Geico General Ins. Co., Case No.: 16-04998 CONO 70 (Fla. Broward Cty. Ct. June 12, 2018) [26 Fla. L. Weekly Supp. 429a]. The Court finds no reason to depart from its prior ruling. GEICO is contractually obligated to pay 100% of the charges that are submitted by a provider in an amount less than 200% of the Medicare Part B Fee Schedule applicable to the service, care, or supply.
The amount owed due do this issue was detailed in Plaintiff’s motion. Plaintiff’s calculations amounted to $137.40 outstanding in benefits. The Court agrees and finds that Plaintiff’s breach of contract damages equal this amount.
II. Defendant’s Motion to Amend
In response to Plaintiff’s motion for summary disposition, Defendant filed a motion seeking leave to amend its answer to include an affirmative defense alleging that Plaintiff failed to strictly comply with the presuit demand letter requirement of Fla. Stat. §627.736(10). The Court grants Defendant leave to amend its affirmative defenses over Plaintiff’s objections — both those raised ore tenus and by written motion.
However, Fla. Sm. Cl. R. 7.135 provides: “At pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment”, so the Court will address Defendant’s defense. Defendant offered as an exemplar the demand letter submitted by Plaintiff’s counsel Royal Palm Beach Rehab, Corp. (Brenda Meirles) v. Geico, Case No. 18-009334 CONO 70.
At issue is the following language in Fla. Stat. §627.736(10)(b)3.:
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.
The thrust of Defendant’s position is that a prospective plaintiff, such as the assignee medical provider in this case, must send a presuit demand letter that hits the nail exactly on the head regarding the total amount that a provider could obtain. If a provider claims that the amount owing deviates from the exact amount to which such a plaintiff is ultimately entitled to obtain, Defendant posits that the plaintiff cannot maintain a lawsuit against Defendant. Such an interpretation of the law is misplaced.
This Court previously found that “[t]he demand letter statute does not require the provider to specify the exact amount that the insurer will ultimately owe”. Bougie Center for Chiropractic and Alternative Med. v. USAA Gen. Indem. Co., 14010799 COCE 70 (Fla. Broward Cty. Ct. June 13, 2018) [26 Fla. L. Weekly Supp. 330a]. The Court agrees with the reasoning of the 6th Judicial Circuit, sitting in its appellate capacity:
. . .nowhere does the statute mandate that one seeking payment must state the exact amount of PIP benefits owed. It mandates only that the cost of the service provided be specified. The demand letter did so. The insurer is in a better position than the assignee to calculate any PIP benefits available for a claim.
Tampa Bay Imaging, LLC v. Mercury Indemnity Co. of America, 22 Fla. L. Weekly Supp. 504a (Fla. 6th Cir. Ct. App. 2014). More importantly, the Court is bound by the Fourth District Court of Appeal, which routinely holds that substantial compliance is sufficient to comply with a condition precedent. Citigroup Mortgage Loan Trust, Inc., v. Jack Scialabba and Sharon Scialabba, Case No.: 4D17-07 (Fla. 4th DCA March 7, 2018) [43 Fla. L. Weekly D523a].
In this case, the Plaintiff substantially complied with the relevant statutory provisions. In fact, the Court finds that this Plaintiff went above and beyond what was required by the statutes. This Plaintiff should not be faulted by going above this minimal requirement and giving Defendant a more thorough understanding of what was being sought — through Plaintiff’s including a total amount of charges, attempting to show Defendant its prior payments (amounts Defendant already knows since it was the one issuing the payments), calculating an amount claimed to be due, explaining assumptions used to reach the amount claimed to be due, and explaining how that number needed to be modified in the event various facts or policy provisions came into play. Ultimately, the onus is on Defendant to comprehend its obligations under the insurance policy that Defendant issued. Stated another way, insurance adjusters are the individuals responsible for adjusting claims — not insureds and not medical provider assignees.
More to the point, even though Defendant claimed that it could not possibly determine the correct amount to pay under Plaintiff’s demand, in the exemplar case previously mentioned, Defendant did, in actuality, determine the correct amount to pay and actually paid exactly the correct amount — a point, when demonstrated through discovery that was due to Plaintiff, led Plaintiff’s counsel to describe the case as improvidently filed and assured that the exemplar case would be voluntarily dismissed. What happened in this case is exactly how the demand provision is supposed to work: a medical provider gives a final warning to the insurance company that they are going to file suit; the insurance company reviews that warning in light of its statutory and contractual responsibilities, decides which legal or factual issues are worth the fight, and pays the issues that it determines are not worth the fight; and then a provider either sues for the remaining issues it determines are worth litigating or goes away. The Court finds no fault with Plaintiff’s actions under the demand letter process in this case.
While the Court is denying Plaintiff’s motion to amend its complaint to challenge the constitutionality of §627.736(10) under Defendant’s interpretation of the demand provision as moot due to the Court’s rejection of the Defendant’s interpretation on other grounds, the Court nevertheless is aware that adoption of Defendant’s position may require the Court to examine the constitutionality of the demand provision in light of Art. I, § 21, Fla. Const. within the context of Progressive American Ins. Co., et. al. v. Rural Metro Corp. of Fla., 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]. The Court’s interpretation of §627.736(10) keeps this issue far away from that line while comporting with the 4th DCA’s interpretation of conditions precedent.
Plaintiff — ore tenus and through various written motions — raised additional other legal theories under which it claimed that disposition could be entered against Defendant on the demand letter issue including. Additionally, as previously mentioned, Plaintiff also requested leave to amend its complaint in the event that the Court granted Defendant leave so Plaintiff could challenge the constitutionality of the demand letter provision. However, the Court need not address Plaintiff’s other legal theories and motion for leave at this time and they are denied as moot due to the Court’s deciding the issue on other grounds.
III. Remaining issues in this case
The parties also made the Court aware that there are other legal or factual issues remaining in this case. The parties shall coordinate a hearing to take place within thirty (30) days of this order to address the remaining issues. Defendant shall, within seven (7) days from the date of this order, file with the Court and serve on Plaintiff documents showing at what rate all codes were compensated in the subject claim.
