26 Fla. L. Weekly Supp. 831a

Online Reference: FLWSUPP 2610JTHOInsurance — Personal injury protection — Demand letter — Sufficiency — By attaching itemized statement to demand letter, medical provider satisfied statutory condition precedent of section 627.736(10) — PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer

WHOLE HEALTH CLINIC d/b/a HEALTHSOURCE OF TALLAHASSEE a/a/o JOSHUA THOMAS, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2016 SC 001743. December 13, 2018. Nina Ashenafi-Richardson, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. Edwin Valen and Lisa Lewis, Cole, Scott & Kissane, P.A., Tampa, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND DENYING DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT AS TOCOMPLIANCE WITH F.S. 627.736(10) (DEMAND LETTER)

THIS CAUSE came before the Court for hearing on November 7, 2018 on Plaintiff’s and Defendant’s Cross-Motions for Summary Judgment on compliance with Florida Statutes § 627.736(10). The facts are not in dispute and the parties agreed that the issue is purely an issue of law. The Court, having reviewed the motions and entire Court file, read relevant legal authority, heard argument, and been sufficiently advised in the premises, finds as follows:

Florida Statute § 627.736(10) states, in pertinent part:

DEMAND LETTER. —

(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. 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 required shall state that it is a “demand letter under s. 627.736(10)”and shall 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. 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. (emphasis added).

A plain reading of the statute shows that if the Plaintiff attaches an itemized statement to its Presuit Demand Letter (“Demand Letter”), it has complied with the requirement of the condition precedent. In this case, there is no question that the Plaintiff attached an itemized statement giving the insurance carrier the requisite information it needed to confirm the dates at issue, the services rendered, and the exact charge for each service. 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 stating each exact amount for each date of service, it complied with the requirements of § 627.736(10). See, MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. (“Ebb Register”).

Both sides in this case rely on Ebba Register. However, a plain reading of the opinion supports the position of the Plaintiff. The Fourth District wrote:

The language of subsection 627.736(10)(b)3. requires precision in a demand letter by its requirement of an “itemized statement specifying each exact amount”; it also allows a subsection 627.736(5)(d) health insurance claim form to be “used as the itemized statement.” A necessary conclusion of this language is that the statute requires the same precision in a subsection 627.736(5)(d) health insurance claim form as it does in a subsection 627.736(11)(b)3.¹ demand letter.

In this case, there is no dispute that the Plaintiff’s demand letter contained an itemized statement specifying each exact amount that was billed to the Defendant. This “second look”, governed by statute, provides a 30-day “safe harbor” for the insurer to review the charges submitted and dates of service to confirm that the claim was adjusted and all dates of service were accounted for. This second look “discourages gamesmanship on the part of those who might benefits from confusion and delay.” Id., at 465. This Court’s reading of Ebb Register is consistent with the goal of reducing “gotcha litigation” while allowing litigants unencumbered access to courts mandated by the Florida Constitution. See, Patry v. Caps, 633 So.2d 9 (Fla. 1994).

The Defendant’s position is that the Plaintiff failed to “strictly comply” with the condition precedent because it failed to properly account and calculate all prior payments made or enumerate the “exact amount owed”. This Court notes that those arguments are not supported by a plain reading of § 627.736(10) and sister court have rejected this argument. See, EBM Internal Medicine a/a/o Jasmine Gaskin v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 382a (Fla. Duval Cty. Ct. Dec. 9, 2011) (finding no requirement to include prior payments made or exact amount owed in a demand letter); also see, First Coast Medical Center, Inc. a/a/o Barbara Derouen, 17 Fla. L. Weekly Supp. 118a (Fla. Duval Cty. Ct. November 12, 2009); EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a (Fla. Duval Cty. Ct. February 8, 2012); Neurology Partners, P.A., d/b/a Emas Spine & Brain a/a/o Scott Bray v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 101b (Fla. Duval Cty. Ct. August 7, 2014); Neurology Partners, P.A. d/b/a Emas Spine & Brain a/a/o Wendy Brody v. State Farm Mutual Automobile Insurance Company, (Case No.: 2012-SC-4885, Fla. Duval Cty. Ct. July 23, 2014); and, Physicians Medical Centers Jax, Inc. a/a/o Melanie Wrenn v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 359a (Fla. Duval Cty. Ct. August 25, 2014). In fact, this Court previously ruled that attaching an itemized statement with the requisite information to adjust a claim satisfies the statutory condition precedent of § 627.736(10). See, Ruth Beck v. State Farm Mut. Auto.Ins. Co, 22 Fla. L. Weekly. Supp. 454b (Fla. Leon Cty. Ct. October 14, 2014). Therefore, this Court finds no reason to depart from its earlier ruling and finds that that the Plaintiff complied with requirements of F.S. 627.736(10).

Therefore, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Cross-Motion for Summary Judgment is DENIED.

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¹F.S. 627.736(10) was previously numbered as F.S. 627.736(11) prior to 2008.