27 Fla. L. Weekly Supp. 974a
Online Reference: FLWSUPP 2711RUBIInsurance — Personal injury protection — Coverage — Medical expenses — Demand letter — Sufficiency — Demand letter is required to strictly comply with requirements of section 627.736(10) — Where there are inconsistencies between amount demanded in letter and amount due reflected in attached ledger, letter does not strictly or substantially comply with statutory requirements — Insurer did not waive defenses based on demand letter where insurer explicitly reserved right to raise additional defenses in response to letter — Dismissal of action, not abatement, is appropriate remedy for deficient demand letter
SPINE CORRECTION F/K/A ALIGNLIFE a/a/o Griselda Rubio, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 2019-SC-001125. December 20, 2019. Mary Catherine Green, Judge. Counsel: J. Allen Foretich Jr., Schiller Kessler Group, Fort Lauderdale, for Plaintiff. Edward H. Stickles, III, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT FOR FAILURE TO SERVE ASTATUTORILY COMPLIANT PRE-SUIT DEMAND
THIS CAUSE, having come to be heard before the Court on December 5, 2019 on Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-Suit Demand and the Court having heard the argument of counsel, and being otherwise advised in the Premises, the Court finds as follows:
Factual Background
1. Plaintiff served State Farm with a document dated January 14, 2019, purporting to be a pre-suit demand in accordance with Fla. Stat. §627.736(10).
2. The correspondence asserts that State Farm owed additional Personal Injury Protection (PIP) benefits in the amount of $3,810.39 for the dates of service of June 8, 2018 through October 29, 2018.
3. Attached to the correspondence was a copy of a billing ledger which revealed an “Insurance Responsibility” of ($38.89) and a “Patient Responsibility” of $5,351.07.
4. The billing ledger shows a $0.00 balance for all dates of service under the “Insurance Responsibility” with the exception of August 15, 2018 which shows an insurance balance of -$36.65 and July 13, 2018 which shows a -$2.24 balance.
5. Defendant filed a Motion for Summary Judgment on April 29, 2019 alleging Plaintiff failed to serve a valid pre-suit demand in accordance with Fla. Stat. §627.736(10) at least 30 days prior to filing the instant action.
Legal Analysis
I. The plain language of the No-Fault Statute requires strict compliance with the pre-suit demand requirements of Fla. Stat. 627.736(10)
Defendant has asserted that this Court should adopt a “strict compliance” standard with respect to the requirements of Fla. Stat. §627.736 while Plaintiff has alleged that the Court should adopt a “substantial compliance” standard.
Subsection 627.736(10)(a), Fla. Stat., provides as follows:
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).
These statutory requirements have not changed since the enactment in 2001. The Florida Supreme Court stated that this legislation “requires an insured to provide a pre-suit notice of intent to initiate litigation and provides an insurer additional time to pay an overdue claim.” Menendez v. Progressive, 35 So.3d 873, 879 (Fla. 2010) [35 Fla. L. Weekly S222b] (emphasis supplied). The Florida Supreme Court further observed that an insured “must now take additional steps beyond filing an application for PIP benefits and beyond complying with §627.736(4). This includes the preparation and provision of a written notice of intent to litigation . . . .” Menendez, 35 So.3d at 881. The effect of the pre-suit demand letter is to provide an insurer additional time to remit payment for a claim before a lawsuit may be enacted:
An insurer has additional time to meet its obligation under the statute, and an action for a claim of benefits and attorneys’ fees cannot be initiated until the additional time for payment has expired. Thus, the statue allows the insurer additional time to pay the claim and affects the insured’s right to sue and recover attorneys’ fees.
Menendez, 35 So.3d at 881 (emphasis supplied).
The statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits. MRI Associates of America, LLC v. State Farm Fire and Casualty Company, 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b] (citing, Menendez, 35 So.3d 879-880) (emphasis supplied).
While there appears to be no binding authority upon this Court, it is persuasive that many of the surrounding jurisdictions have adopted a strict compliance standard as asserted by defense. See Quality Auto Rehab, LLC a/a/o Renaldo Carrasco v. State Farm Mut. Auto. Co., 23 Fla. L. Weekly Supp. 584b (Fla. Hillsborough Cty. Ct., April 14, 2014)(Ober, J.); West Coast Spine & Injury Center a/a/o Aimee Arias v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 38b (Fla. Hillsborough Cty. Ct., 2009)(Myers, J.); Chambers Medical Group, Inc. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. Hillsborough Cir., December 1, 2006) (Appellate); First Health Chiropractic a/a/o Sheila Gholami v. State Farm Mutual Automobile Insurance Company, FLWSUPP 1805GHOL (Fla. Orange Cty. Ct. October 25, 2010) [18 Fla. L. Weekly Supp. 484a] (Plogstedt, A.); Florida Emergency Physicians Kang & Associates, M.D., P.A. a/a/o Scott Rubenfeld v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 391a (Fla. Seminole Cty. Ct. December 6, 2005)(Sloop, J.)
Subsection §627.736(10), F.S. as renumbered in 2008, does not differ in material terms from the pre-2008 version of the No-Fault Statute. Both versions of the statute required Plaintiff to serve a pre-suit demand which included an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. Fla. Stat. 627.736(10).
Based upon the plain language of the statute, the court finds that strict compliance with the requirements of subsection 627.736(10), F.S. is required. As espoused by the Chambers court, “A ‘substantial compliance’ standard would trigger significant litigation as to the sufficiency of the papers attached to a demand letter. . .and providers would be relieved of their obligation under the statute.”
II. Inconsistencies between the demand correspondence and itemized ledger do not comply with the strict requirements of Fla. Stat 627.736(10).
As stated above, Plaintiff’s pre-suit correspondence asserts that State Farm owed additional Personal Injury Protection (PIP) benefits in the amount of $3,810.39 for the dates of service of June 8, 2018 through October 29, 2018. While the attached ledger shows an “Insurance Responsibility” of ($38.89) and a “Patient Responsibility” of $5,351.07. The billing ledger shows a $0.00 balance for all dates of service under the “Insurance Responsibility” with the exception of August 15, 2018 which shows an insurance balance of -$36.65 and July 13, 2018 which shows a -$2.24 balance.
“Inaccurate, misleading, illegible, or stall information contained in a demand does not strictly comply with the statutory requirements.” Chambers, 14 Fla. L. Weekly Supp. 207a. The Plaintiff’s demanded amount and the amount due and owing under the attached billing ledger are conflicting.
Plaintiff has taken the position that State Farm is the party in the best position to determine the amount due and owing and that Plaintiff cannot know the amount actually due until discovery is completed. The Court is not persuaded by this argument. Fla. Stat. 627.736(10) clearly and unambiguously places the responsibility to determine the amount due and owing on the Plaintiff, not the carrier.
“If the intent of §627.736(10) is to reduce the burden on the courts by encouraging the quick resolution of PIP claims, it makes sense to require the claimant to make a precise demand so that the insurer can pay and end the dispute before wasting the court’s and the parties’ time and resources.” Venus Health Center a/a/o Joaly Rojas v. State Farm Fire & Casualty Company, 21 Fla. L. Weekly Supp. 496a (Fla. 11th Jud. Cir. App. 2014). In Venus, the provider asserted that it did not have the “burden of adjusting the claim” however the Venus court was not persuaded by this argument. The Court went on to state that the reason the exact amount owed is so important is “If the PIP insurer must guess at the correct amount and is wrong, then the provider sues and exposes the insurer to attorney’s fees.”
Without requiring that the Plaintiff identify the specific amount owed in the pre-suit demand, the statutory pre-suit demand requirements would be eviscerated, and the insurer would be in the untenable position of hoping that they guessed the amount due and owing correctly and waiting to be sued.
As such, this Court finds that the inconsistencies between the demanded amount and the amount due in the itemized ledger does not strictly, or even substantially, comply with the requirements of the statute and that State Farm was not afforded the opportunity to resolve this matter without litigation. See Florida Injury Longwood a/a/o Aaron Clements v. USAA Casualty Insurance Company, 25 Fla. L. Weekly Supp. 970b (Fla. Orange Cty. Ct. 2017)(Allen, F.); Conforti Chiropractic and Wellness Center, Inc. a/a/o Albert Dort v. USAA General Indemnity Company, FLWSUPP 2606DORT (Fla. Hills. Cty. Ct. 2018) [26 Fla. L. Weekly Supp. 512c] (Fernandez, G.); Bain Complete Wellness, LLC a/a/o Kerri McDougald v. Garrison Property and Casualty Insurance Company, FLWSUPP 2607MCDO (Fla. Hills. Cty. Ct. 2018) [27 Fla. L. Weekly Supp. 743b] (Ober, J.); Ted Berger, D.C., P.A. a/a/o Giselle Victor v. Geico General Insurance Company, FLWSUPP 1806VICT (Fla. Broward Cty. Ct. 2011) [18 Fla. L. Weekly Supp. 545c] (Trachman, L.); North Florida Health Care, Inc. a/a/o Spencer Pitcher v. USAA Casualty Insurance Company, 18 Fla. L. Weekly. Supp. 548a (Fla. Duval Cty. Ct. 2011)(Higbee, R.); First Health Chiropractic a/a/o Sheila Gholami v. State Farm Mutual Automobile Insurance Company, FLWSUPP 1805GHOL (Fla. Orange Cty. Ct. 2010) [18 Fla. L. Weekly Supp. 484a] (Plogstedt, A.); and Injury Centers of St. Pete, Inc. a/a/o Stetson Estes v. Garrison Property and Casualty Insurance Company a/k/a USAA, 25 Fla. L. Weekly Supp. 192a (Fla. Hills. Cty. Ct. 2017)(Perrone, F.).
III. State Farm did not waive any defenses relating to the pre-suit demand.
Within Plaintiff’s Notice of Filing of Authority in Opposition to Defendant’s Motion for Summary Judgment Regarding Demand Letter Sufficiency, several cases cited relate to a waiver of the defense of invalid pre-suit demand.
In response to Plaintiff’s pre-suit demand, State Farm provided a response dated February 4, 2019. See Exhibit B of the Affidavit of Tracey Pope in support of Motion for Summary Judgment. Within this response, State Farm specifically reserved the right to raise defenses regarding the validity of the pre-suit demand.
State Farm does not have an obligation to respond to the pre-suit demand under the No-Fault statute. Alliance Spine & Joint, Inc. v. USM Casualty Insurance Company, 24 Fla. L. Weekly Supp. 555c (Fla. Miami-Dade Cty. Ct. 2016). The Court in Alliance correctly noted that, “[t]he PIP statute imposes no legal duty on an insurer to send a response to a demand letter, much less one that would anticipate every potential legal defense to a lawsuit.” Id. Additionally, Judge Schwartz noted the following with respect to waiver:
However, it is neither required nor legally permissible to require a non-attorney, claims adjuster to anticipate every legal defense to a potential suit when explaining why a claim was being denied, especially when the majority of the reasons for the denial or reduction were already determined and communicated to the Plaintiff through EORs prior to receipt of Plaintiff’s demand. In order for Plaintiff to demonstrate that Defendant waived its affirmative defenses pertaining to the pre-suit demand, it would have had to produce evidence of the following three elements of waiver: “(1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right.” Husky Rose, Inc. d/b/a Danny’s 19th Hole Restaurant and Lounge v. Allstate Ins. Co., 19 So.3d 1085 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2037a].
See also Ted Berger, D.C., P.A. a/a/o Giselle Victor v. Geico General Insurance Company, FLWSUPP 1806VICT (Fla. Broward Cty. Ct. 2011) [18 Fla. L. Weekly Supp. 545c] (Trachman, L.); and First Health Chiropractic a/a/o Sheila Gholami v. State Farm Mutual Automobile Insurance Company, FLWSUPP 1805GHOL (Fla. Orange Cty. Ct. 2010) [18 Fla. L. Weekly Supp. 484a] (Plogstedt, A.).
Therefore, the Court finds that State Farm did not waive any defenses based upon the pre-suit demand as State Farm explicitly reserved the right to raise additional defenses in the response to the pre-suit demand.
IV. Dismissal, not abatement, is the appropriate remedy.
The correct remedy when a party has failed to comply with pre-suit notice requirements is summary judgment. Chambers Medical Group, Inc. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. App. 2013).
The appellate division of the Ninth Judicial Circuit, which also follows a strict compliance standard, similarly ruled that the proper remedy is dismissal, not an abatement or stay. Medical Therapies, LLC. v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 34a (Fla. 9th Cir. App. 2014). The Court reasoned that an abatement or stay is proper when a lawsuit is premature because it can be cured by the passage of time, however the passage of time would not satisfy the condition precedent of requiring a statutorily compliant demand letter; instead a new lawsuit would need to be filed. Id.
Other courts have similarly ruled that abatement or stay is not the proper remedy for curing a defective demand letter. See Richard W Merritt, D.C., P.A. v. Auto Club South Insurance Company, 22 Fla. L. Weekly Supp. 734b (Fla. Polk Cty. Ct. 2014) (Florida Courts have held that as defects in a required pre-suit demand may not be cured merely by the passage of time, a lawsuit filed subsequent to a defective demand is not merely premature, and as such, “dismissal, and not abatement, is the proper remedy); James D. Shortt, MD., P.A. v. State Farm Fire and Casualty Co., 23 Fla. L. Weekly Supp. 769a (Fla. Sarasota Cty. Ct. 2015) (Because the Plaintiff would be required to do some affirmative act, i.e, the submission of a new presuit demand letter, any alleged defect(s) in the original demand cannot be cured by the passage of time and does not render the lawsuit prematurely filed. Therefore, abatement is not the proper remedy); and Foundation Chiropractic Clinic, Inc. v. State Farm Mut Auto. Ins. Co., 20 Fla. L. Weekly Supp. 694c (Fla. Palm Beach Cty. Ct. 2013) (Lawsuit is not premature because it cannot be cured by the passage of time, instead demand failed to comply with statutory conditions precedent; lawsuit is not premature and dismissal, not abatement, is the proper remedy).
As such, the Court finds that dismissal is the appropriate remedy.
As such, the Court finds as follows:
1. Fla. Stat. §627.736(10) requires strict compliance with the requirements of the statute as a condition precedent to a lawsuit based upon personal injury protection benefits;
2. Plaintiff’s pre-suit demand contains inconsistencies between the amounts demanded within the correspondence and the total balance within the attached ledger;
3. These inconsistencies result in Plaintiff’s pre-suit demand failing to strictly, or even substantially, comply with the requirements of Fla. Stat. §627.736(10);
4. State Farm did not waive the ability to raise a defense based upon the pre-suit demand;
5. Dismissal is the appropriate remedy for failure to comply with the condition’s precedent.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Judgment for Failure to Serve a Statutorily Compliant Pre-suit Demand is hereby GRANTED.
2. Judgement is hereby entered in favor of Defendant, State Farm Mutual Automobile Insurance Company.
3. Plaintiff shall take nothing from this action and Defendant shall go hence without day.
4. The Court reserves jurisdiction to consider any applicable claims for reasonable attorneys’ fees and costs, if any.
