28 Fla. L. Weekly Supp. 538a
Online Reference: FLWSUPP 2806DRIVInsurance — Personal injury protection — Coverage — Transportation costs — Demand letter for transportation costs that failed to provide address of medical provider visited or dates of service and identified incorrect medical provider did not satisfy condition precedent to suit
DAVID RIVERA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2014-12640-SP-25 (02). July 27, 2018. Elijah Levitt, Judge. Counsel: George A. David, George A. David, P.A., Coral Gables, for Plaintiff. Abbi S. Freifeld, Roig Lawyers, Deerfield Beach, for Defendant.
FINAL JUDGMENT FOR THE DEFENDANT
THIS CAUSE having come before the Court for hearing on June 20, 2018, on Defendant’s January 19, 2016, Motion for Summary Judgment regarding an invalid demand letter, and the Court, having reviewed the Motion, Plaintiff’s response, the Parties’ referenced exhibits and depositions, and the entire Court file, and having heard the argument of the Parties, having reviewed the relevant legal authorities, and having been otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
Defendant’s Motion for Summary Judgment is GRANTED for the reasons stated herein.
FACTUAL AND PROCEDURAL BACKGROUND
This is an action by the Plaintiff, David Rivera (hereinafter referred to as “Rivera” or “Plaintiff”), to recover alleged overdue No-Fault mileage benefits from the Defendant, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm” or “Defendant”). Specifically, Plaintiff sought alleged expenses relating to mileage incurred to and from a medical provider as a result of a March 28, 2014, motor vehicle accident. Plaintiff’s Amended Complaint does not provide the name of the medical provider, the medical provider’s address, the mileage for which Plaintiff requests reimbursement, the total amount owed, the dates of travel, or the amount per mile requested. See Plaintiff’s March 5, 2015, Motion to Amend Complaint at 4-7.
At the time of the accident, Rivera was covered under a policy of insurance that was issued by State Farm and provided personal injury protection (“PIP”) benefits up to $10,000.00.
On June 20, 2018, this Court heard argument on Defendant’s Motion for Final Summary Judgment regarding an allegedly invalid demand letter. According to the Parties, this Motion, if granted, would be dispositive of this cause of action.
A. The Demand Letter
The Parties do not dispute that on August 11, 2014, Rivera, through counsel George A. David, P.A., (hereinafter referred to as “Plaintiff’s counsel”) sent a pre-suit demand letter to State Farm requesting alleged overdue PIP benefits under §627.736(10), Florida Statutes, for a claim of “PIP Benefits for transportation expenses.” See Defendant’s Motion for Summary Judgment at Exhibit 3. The demand letter does not provide the name of the medical provider, the medical provider’s address, the mileage for which Plaintiff requests reimbursement, the total amount owed, the dates of travel, or the amount per mile requested. See id.
The Parties also do not dispute that Plaintiff’s counsel sent a one-page letter dated July 10, 2014, to State Farm both on or about July 10, 2014, and as an attachment to the August 11, 2014, demand letter. See Defendant’s Motion for Summary Judgment at Exhibit 2. During oral argument, State Farm acknowledged that this July 10, 2014, should be considered as an attachment to the demand letter.
The July 10, 2014, letter advised State Farm that Rivera traveled from “15341 S.W. 153rd Street for 16 treatments with the Kendall Chiropractic and returned to 15341 S.W. 153rd Street for 96. Accordingly David Rivera drove 96 miles for a partial portion of his medical treatment in this matter. David Rivera’s reasonable transportation expense is .61 cents a mile.” Id. The July 10, 2014, correspondence does not provide the exact amount at issue, the dates of service for which Rivera incurred his transportation expenses, or the address of the clinic to and from which Rivera traveled. See id.
The record regarding the July 10, 2014, letter reflects that Plaintiff never traveled to a medical provider named “Kendall Chiropractic.” The health insurance claim forms provided to the Court contain a “service facility location” of “CHRIOPRACTIC [sic] CLINICS S FL 13501 SW 136th ST STE 202 MIAMI FL 33186” and “billing provider info” of “CHIROPRACTIC CLINICS OF S. FL PO BOX 864895 ORLANDO FL 32886-4895.” See Defendant’s Motion for Summary Judgment at Exhibit 1. At no time did either party introduce evidence of medical services rendered at a provider named “Kendall Chiropractic” or an affiliate of said company.
B. State Farm’s Efforts to Clarify the Claim
On or about July 25, 2014, Defendant sent a letter to Plaintiff requesting clarification of the mileage claim, specifically for an “itemized list of the dates and number of miles for each date to be submitted in writing.” See Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at Exhibit F.
On or about August 7, 2014, Plaintiff’s counsel responded to this letter. See Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at Exhibit G. The letter provided, inter alia, that “Rivera traveled on average 6 miles . . . on: April 1, 2014; April 7, 2014; April 9, 2014; April 11, 2014; April 16, 2014; April 18, 2014; April 21, 2014; April 23, 2014; April 25, 2014; April 28, 2014; April 30, 2014 and May 2, 2014.” Id. According to the claim forms, this letter incorrectly identified April 1, 2014, instead of April 2, 2014, as a treatment date. The Court also notes that this letter did not include thirteen other treatment dates between June 23, 2014, and August 6, 2014, that appear in the claim forms. See Defendant’s Motion for Summary Judgment at Exhibit 1. Lastly, the August 7, 2014, letter was not attached to, or sent with, the August 11, 2014, demand letter.
C. Deposition Transcripts
The Parties provided the Court with the transcript of State Farm corporate representative Anthony Romney. See Defendant’s Motion for Summary Judgment at Exhibit 1 and Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at Exhibit D. Mr. Romney testified that Defendant paid Plaintiff $32.54 for the twelve visits itemized in Plaintiff’s August 7, 2014, letter at the rate of 56.5 cents per mile plus sixteen cents interest. Id. at 82 and 108. Further, Mr. Romney did not dispute the payments for the twelve trips. Id. at 137.
Defendant provided the Court with Plaintiff’s deposition transcript. According to the transcript, Plaintiff could not remember the name or address of the medical service provider that rendered the services in question. See Deposition of David Rivera at 20 and 23. Plaintiff did not recall the name “Kendall Chiropractic.” Id. at 26. Plaintiff also could not articulate how he calculated the cost of the mileage. Id. at 46-49 and 58-59.
ARGUMENT
Defendant argues that if Plaintiff is entitled to transportation benefits under Florida Statute § 627.736, as he claims to be, so too must Plaintiff fulfill its obligations under the Statute. Namely, Plaintiff, as a condition precedent to filing the instant lawsuit, must submit a pre-suit demand letter that complies with Florida Statute § 627.736(10). Specifically, subsection (10) of the Statute provides:
(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. 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.)
State Farm argues simply that Plaintiff’s “demand letter” failed to comply with Florida Statute § 627.736(10) as it failed to attach an itemized statement identifying each exact amount due, the dates of treatment, service, or accommodation for which Rivera incurred his transportation expenses, and the type of benefit claimed to be due. Among other cases, Plaintiff relied on Orlando Menendez v. State Farm Automobile Insurance Company, No. 12-1780-SP-25 (Fla. Miami-Dade Cty. Ct. June 4, 2018). Plaintiff argued that Menendez involved a nearly identical situation, in which the same Plaintiff’s counsel as the present case sent a similar demand letter to State Farm. The Menendez Court found that the demand letter did not comply with the strict requirements of Florida Statute § 627.736(10). Id. Thus, State Farm argued that this Court should follow the Menendez opinion.
In response, Plaintiff did not dispute that its Demand Letter did not include the address of the medical clinic to which he traveled, the dates of treatment for which he incurred his transportation expenses, or the exact amount due and owing, but instead argued that Defendant could have discovered what was at issue, the dates of service and the clinic’s address, by reviewing its claim file. Plaintiff argued that issuing payment in response to Plaintiff’s Demand Letter, albeit less than what Plaintiff alleges, is evidence that Defendant understood Plaintiff’s demand. Plaintiff also argued that Defendant is raising an issue on summary judgment that was not raised as an affirmative defense. Lastly, Plaintiff, inter alia, referred the Court to Progressive Express Insurance Company v. Michelet Polynice, 12 Fla. L. Weekly Supp. 1015b (Fla. 9th Cir. Ct. July 1, 2005), and argued that the legislative intent of Florida Statute § 627.736(10) was to provide insurers with notice of intent to sue. In Polynice, the Ninth Circuit Court, acting in its appellate capacity, found a demand letter that requested reimbursement from January 1, 2002, to April 1, 2002, for 198 miles complied with Florida Statute § 627.736(10). See id. In this case, Plaintiff believes that informing State Farm of Plaintiff’s intent to sue if State Farm did not pay Plaintiff 61 cents per mile for 96 miles complied with the requirements of Polynice and the legislative intent of § 627.736(10).1
FINDINGS OF LAW
As a preliminary matter, the Court finds Defendant’s Third Affirmative Defense adequately pleads the issues raised in Defendant’s Motion for Summary Judgment. The Third Affirmative Defense alleges a deficient demand letter for failure to comply with Florida Statute § 627.736(10) for the same reasons as appear in Defendant’s Motion for Summary Judgment. See Plaintiff’s Opposition to Motion for Summary Judgment at Exhibit D. Defendant’s argument for denial of Defendant’s Motion on these grounds is without merit.
Florida Statute § 627.736(10) provides in pertinent part:
(10) 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:
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 . . . Id.
Regarding the judicial interpretation of this statute, the trial court’s reasoning in Menendez v. State Farm, No. 12-1780-SP-25 (Fla. Miami-Dade Cty. Ct. June 4, 2018) is persuasive. The Court provided the following:
As with any PIP claim including a claim for transportation benefits, a Plaintiff must first give the Defendant written notice of an intent to initiate litigation in the form of a pre-suit demand letter prior to filing a lawsuit. The letter “shall state with specificity” an “itemized statement specifying each exact amount” due. See id. Florida courts have held that this language is unambiguous and places the burden upon the Plaintiff to fulfill the requirements outlined. MRI Associates of Am., LLC (Ebba Register) v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b], reh’g denied (June 24, 2011). Thus, in interpreting the language of section 627.736, Florida Statutes, trial courts across the State have imposed a duty on medical care providers to specify the proper compensable amount owed by insurers in order to satisfy the requirements on the Statute. Id. An insurer, however, is not properly placed on notice if the wrong amount is stated in the demand letter. See id.; see also Wide Open MRI v. Mercury Ins. Group, 16 Fla. L. Weekly Supp. 513b (Fla. 17th Cir. Cty. Ct. March 13, 2009).
Courts have also held that the specifications of §627.736(10), Fla. Stat. [previously §627.736(11)], must be strictly construed. See Chambers Medical Group, Inc. (a/a/o Marie St. Hillare) v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a Circuit Court, (13th Jud. Cir. Cty. Ct., December 1, 2006); MRI Associates of Am., LLC (Ebba Register), 61 So.3d at 465, citing to Fountain Imaging of West Palm Beach, LLC v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (15th Jud. Cir. Cty. Ct. March 30, 2007). A strict compliance with the notice requirements is required to effect the purpose of the statute. See Chambers Medical Group, Inc. (a/a/a Marie Hillare), 14 Fla. L. Weekly Supp. 207a. A “substantial compliance” standard would trigger significant litigation as to sufficiency of the papers attached to a demand letter, the result of which would be that payment of claims would cease to be automatic, and providers would be relieved of their obligation under the Statute. Id. Inaccurate, misleading, illegible, or stale information contained in a demand does not strictly comply with the statutory requirement. Id.
It is clear from legislative intent and the supporting case law that strict specificity must be adhered to regarding the demand letter requirement. As such, this Honorable Court finds that the Plaintiff failed to strictly adhere to the demand letter requirements as required under Florida Statute 627.736(10) for the reasons set forth by the Defendant. The Court is not persuaded by Plaintiff’s arguments that Defendant should be required to interpret and/or review its own records to make sense of Plaintiff’s vague demand letter.
Menendez, No. 12-1780-SP-25, Final Judgment for the Defendant at 4-5.
Additionally, the facts of Menendez resemble the facts of the present case. In Menendez, Plaintiff’s counsel mailed State Farm a demand letter and attached another letter requesting payment for travel to and from a specific address for 56 treatments with a named medical provider for a total of 168 miles. See Menendez, No. 12-1780-SP-25, May 23, 2014, Motion for Summary Judgment at Exhibit 1. The Plaintiff further requested 61 cents per mile. Id. The letter identified the medical provider’s name but did not provide State Farm the address for the medical provider or any dates of service. Id. The trial court found that this information was insufficient to comply with Florida Statute § 627.736(10). Id.
Although the facts are similar, the demand letter in the present case is less precise than the Menendez demand letter, which that court found to be deficient. In addition to not providing the address for the medical provider or any dates of service in his July 10, 2014, attachment to the demand letter, Plaintiff identified an incorrect medical provider for the alleged services rendered. The Parties did not introduce any evidence of the existence of Kendall Chiropractic or any medical services provided by an affiliate of Kendall Chiropractic. Based on the deficiency finding in Menendez, Plaintiff’s demand letter containing even more erroneous information cannot be deemed valid.
The testimony provided to the Court supports the finding of a deficient demand letter. As evidenced by State Farm’s representative, State Farm paid for the mileage that Plaintiff requested in the itemized August 7, 2014, letter. See Deposition of Anthony Romney attached to Defendant’s Motion for Summary Judgment at Exhibit 1 and Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at Exhibit D. Further, Plaintiff testified at deposition that he (1) is unaware of Kendall Chiropractic, (2) had no recollection of the name and address of the actual medical provider, and (3) could not state with any degree of specificity how he came up with the amount of 61 cents per mile. See Deposition of David Rivera. The testimony on record belies a finding of a valid demand letter.
Finally, the Court recognizes the Ninth Circuit Court’s impressive exploration of the legislative intent behind Florida Statute § 627.736(10) in Progressive Express Insurance Company v. Michelet Polynice, 12 Fla. L. Weekly Supp. 1015b (Fla. 9th Cir. Ct. July 1, 2005), but the facts are distinguishable from the present case. In Polynice, the Plaintiff’s demand letter contained the dates of treatment, the total miles, and “the appropriate itemization of the benefits claimed as outstanding.” Id. The Ninth Circuit also found that the Plaintiff provided the Defendant with mileage forms referencing the name of the medical provider, dates of treatment, and total number of miles — all of which matched the information provided in the demand letter. Id. Therefore, the demand letter in Polynice passed muster.
The demand letter in the present case does not comport with the legislative intent described in Polynice. A demand letter containing either a fictitious or erroneous name of a medical provider with no physical address for unspecified dates of treatment is insufficient to place an insurance company on notice of what bills or debts remain unpaid. The Court also notes that State Farm attempted to clarify the claim, but Plaintiff further muddied the waters by providing the August 7, 2014, letter in response to the request for clarification. Only four days after the August 7, 2014, letter, in which he requested payment for twelve visits, Plaintiff sent the demand letter with the July 10, 2014, letter attached, in which he requested payment for sixteen visits. The circumstances surrounding the demand letter in this case are a far cry from the demand letter and mileage forms considered by the Polynice court.
A plain reading of Plaintiff’s demand letter, and attachment thereto, shows that no genuine issue of material fact exists as to the demand letter’s failure to comply with Florida Statute § 627.736(10). The record evidence supports this finding. Wherefore, Defendant is entitled to judgment as a matter of law.
CONCLUSION
Based upon the foregoing, the Court finds that the Defendant State Farm Mutual Automobile Insurance Company’s Motion for Final Summary Judgment is granted, and Final Judgment is hereby entered on behalf of Defendant, State Farm Mutual Automobile Insurance Company. The Plaintiff, David Rivera, shall take nothing by this action and the Defendant, State Farm Mutual Automobile Insurance Company, shall go hence without a day. The Court retains jurisdiction for the purpose of determining any motion by the Defendant to tax fees and costs.
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1Defendant also argued that [Editor’s note: incomplete on court document.]
