27 Fla. L. Weekly Supp. 1048a
Online Reference: FLWSUPP 2712MCFAInsurance — 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 state exact amount owed by insurer — Demand letter is not invalid for stating amount that differs from jurisdictional amount set forth in statement of claim of later-filed suit
ALLIANCE SPINE & JOINT II, INC., a/a/o Dante McFarlane, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 19-002862 COSO (62). February 5, 2020. Terri-Ann Miller, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Staci Burton, for Defendant.
ORDER
This cause having come before the Court on Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense, the Court having heard argument of the parties, and being otherwise advised in the premises it is hereby ORDERED AND ADJUDGED, as follows:
Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense is hereby Granted. The Court finds that Plaintiff’s Demand Letter substantially complies with Florida Statute 627.736 and qualifies as a valid Demand Letter.
Notwithstanding the foregoing and even if Plaintiff’s clerical error in addressing the Demand Letter to “USAA General Indemnity Ins. Co.” as opposed to “United Services Automobile Association” constituted a fatal error, which this Court does not so find, the Court finds that the Defendant sustained no prejudice as a result of the foregoing and therefore the Plaintiff should not be prevented from pursuing this action.
“a plaintiff need only substantially comply with conditions precedent.” Id. at 61 (citing Fed. Nat’l Mortg. Ass’n v. Hawthorne, 197 So.3d 1237, 1240 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1800a]). “Substantial compliance or performance is ‘performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee’ the benefit of the bargain.” Lopez v. JPMorgan Chase Bank, 187 So.3d 343, 345 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D595b] (quoting Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971)). “Moreover, a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent some prejudice. . . . Even if we concluded that the required notice was mailed to an incorrect address, the Bank correctly points out that the defective notice did not prejudice the Borrowers, as they did not attempt to cure the default.
Citigroup Mortg. Loan Tr. Inc. v. Scialabba, 238 So. 3d 317, 319-20 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D523a].
Additionally, section 627.736(5)(b)1.d., Florida Statutes (2004), states that an insurer is not required to pay a claim or charges “[w]ith respect to a bill or statement that does not substantially meet the applicable requirements of paragraph (d).” Accordingly, based upon the statute’s plain language, a bill or statement need only be “substantially complete” and “substantially accurate” as to relevant information and material provisions in order to provide notice to an insurer.
United Auto. Ins. Co. v. Prof’l Med. Grp., Inc., 26 So. 3d 21, 24 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a].
Regarding Defendant’s contention that the Demand Letter:
fails to reduce the amount claimed to be due and owing in accordance with the applicable fee schedules. It also seeks the balance of the bills at 100% when the subject policy does not contain Medical Payments benefits. Moreover, it seeks reimbursement for charges which were false and misleading and unbundled.
the Court finds that the Demand Letter included a copy of the original HICF that was submitted to the insurance carrier and that this satisfies the Plaintiff’s obligation to include an “itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.” The Court adopts the reasoning set forth by Judge Guzman in Saavedra v. State Farm, 26 Fla. L. Weekly Supp. 664a (Dade Cty. Ct. 2018) where he held:
this Court rejects the Defendant’s notion that a demand letter must indicate the exact amount owed. There is no language contained in Fla. Stat. 627.736(10) that requires a party to compute the “exact amount owed”. 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, it complied with the requirements of § 627.736. The Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a MedPay provision on a policy (as well as other issues) are unknown to the medical provider, knowledge as to the exact amount owed is virtually impossible.1 The Court is not free to edit statutes of add requirements that the legislature did not include. Meyer v. Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D990c1.
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, Apostolico, 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).
As to Defendant’s last contention that the Demand Letter asked for an amount that was inconsistent with the jurisdictional amount set forth in the Statement of Claim this Court finds that Florida Statute 627.736 does not set forth that a Demand Letter is invalid if a later filed suit contains a jurisdictional amount that differs from the amount requested in the Demand Letter. See Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 398 (Fla. 2013) [38 Fla. L. Weekly S440a] (holding that conditions or denials of payment that are contrary to the terms of section 627.736 are invalid.).
