27 Fla. L. Weekly Supp. 93a
Online Reference: FLWSUPP 2701SPIEInsurance — Personal injury protection — Demand letter — Sufficiency — PIP statute does not require that demand letter state exact amount owed by insurer — Letter that identified provider and insured, stated that it was seeking medical benefits, and included an assignment of benefits and billing ledger that specified each date of service, service provided, and amount billed complied with statute
REESE CHIROPRACTIC CENTER d/b/a GREGG T. REESE DC, PA, a/a/o Stephen Spiegel, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 18-005730 (61). March 1, 2019. Corey Amanda Cawthon, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. John Gioannetti, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S AFFIRMATIVE DEFENSE AND ORDERGRANTING IN PART DEFENDANT’S FIRST MOTION FORLEAVE TO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE having come before the Court on February 4, 2019 for hearing on Plaintiff’s Motion to Strike Defendant’s Affirmative Defense and/or Motion for Summary Judgment that the Plaintiff Submitted a Demand Letter that Complies with 627.736 and on Defendant’s First Motion for Leave to Amend Answer and Affirmative Defenses, and the Court having reviewed the Motions and the relevant portions of the Court file; heard argument of counsel; reviewed relevant legal authorities; and being sufficiently advised in the premises, finds as follows:
I. Plaintiff’s Motion to Strike Defendant’s Affirmative Defense and/or Motion for Summary Judgment that the Plaintiff Submitted a Demand Letter that Complies with 627.736
1. This case is a suit brought by an assignee medical provider for payment of Personal Injury Protection (“PIP”) benefits.
2. The Plaintiff treated the claimant and submitted the associated medical bills to the Defendant.
3. Upon receipt of said bills, the Defendant issued reduced payment to the Plaintiff.
4. Plaintiff thereafter sent the Defendant a pre-suit demand letter as required under Florida Statute 627.736(10).
5. The Defendant has alleged, as an affirmative defense, that the Plaintiff’s pre-suit demand letter does not comply with F.S. 627.736(10).
6. Specifically, the Defendant contends that the demand letter (1) is inaccurate with regard to the amount paid by Defendant toward this claim; (2) fails to reduce the amount claimed to be due and owing in accordance with the applicable fee schedules or account for proper application of the claimant’s $500.00 PIP deductible; (3) seeks reimbursement for a charge which was upcoded and not compensable as billed; and (4) seeks an amount inconsistent with the jurisdictional amount set forth in Plaintiff’s Complaint.
7. Plaintiff maintains that the demand letter complies with F.S. 637.736(10) as (1) the demand letter identified the provider, assignor, that it was seeking payment of medical benefits and included an assignment of benefits and a billing ledger which specified each date of service, the service provided and the amount billed; and (2) F.S. 637.736(10) does not require a demand letter must state the exact amount that is ultimately determined to be due.
8. Florida Statute 627.736(10) states in pertinent part:
(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. . .
9. Nowhere in F.S. 627.736(10) does it state that the demand letter must state the exact amount that is ultimately determined to be due, despite the Defendant’s contentions noted above.
10. In this case, Plaintiff’s demand letter identified the provider, assignor, that it was seeking payment of medical benefits and included an assignment of benefits and a billing ledger which specified each date of service, the service provided and the amount billed, and, thus, Plaintiff has complied with F.S. 627.736(10) and satisfied the condition precedent to filing this lawsuit.
II. Defendant’s First Motion for Leave to Amend Answer and Affirmative Defenses
11. In this case, the Defendant has filed its First Motion for Leave to Amend Answer and Affirmative Defenses whereby the Defendant seeks to amend its previously filed Answer and Affirmative Defenses dated August 28, 2018 to add additional applicable affirmative defenses to this cause, as well as to amend some of its originally filed affirmative defenses.
12. The Court is aware of the liberal policy of allowing litigants freedom to amend their pleadings so that causes may be tried on their merits. See Hatcher v. Chandler, 589 So.2d 428 (Fla.App. 1 DCA 1991).
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Motion to Strike Defendant’s Affirmative Defense and/or Motion for Summary Judgment that the Plaintiff Submitted a Demand Letter that Complies with 627.736 is hereby GRANTED and Defendant’s first affirmative defense is hereby stricken.
2. Defendant’s Motion for Leave to Amend Answer and Affirmative Defenses is hereby DENIED as to Defendant’s first affirmative defense (demand letter) and GRANTED as to the remaining affirmative defenses.
