28 Fla. L. Weekly Supp. 418a
Online Reference: FLWSUPP 2805DRAGInsurance — Personal injury protection — Demand letter that did not account for application of fee schedules elected in policy and included services for which payment was not yet due is invalid — Case abated to allow medical provider to submit compliant demand letter
MIAMI MEDICAL GROUP, INC., a/a/o Sabrina Drago, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2019-027999-SP-05 (06), Section CC06. June 19, 2020. Luis Perez-Medina, Judge. Counsel: Gregg Pessin, Law Office of Gregg Pessin, P.A., Miami, for Plaintiff. Manuel Negron, Shutts & Bowen LLP, Miami, for Defendant.
ORDER ON SUMMARY JUDGMENT REGARDINGPRE-SUIT DEMAND AND ABATING CASE
THIS CAUSE came before the Court on Defendant’s Motion for Summary Judgment Regarding Pre-suit Demand and Plaintiff’s Motion for Summary Judgment re Second Affirmative Defense (Demand); and the Court, having reviewed the Motions, having heard argument of Counsel, and being sufficiently advised in the premises, finds as follows:
Facts and Procedural History
Plaintiff rendered medical services to the claimant from April 4, 2019 through August 8, 2019. Defendant generated Explanations of Benefits, itemizing how it adjusted the Current Procedural Terminology (“CPT”) Codes billed by the Plaintiff. The Explanations of Benefits set forth that the services were paid in accordance with the terms of the policy and the fee schedules incorporated therein via Section 627.736(5)(a)(1), Fla. Stat. (2019) — with the exception of CPT Code 76140, which was denied twice as being unbundled from office visit codes.
On September 6, 2019, Plaintiff sent a Notice of Intent to Initiate Litigation for PIP Benefits pursuant to Section 627.736(10), Fla. Stat. (2019) (“Section 10”). Plaintiff’s demand sought payment of $5,011, representing $10,000 policy limits minus what Allstate had previously paid. The demand included dates of service (August 8, 2019), for which payment was not yet due and which had not yet been processed by the Defendant.1 The demand did not indicate what amount Plaintiff was claiming was overdue for each code, but rather provided the total amount previously billed ($17,639.23) and the total amount previously paid ($4,989) for all codes together. The ledger attached to the demand listed only the amounts previously billed for each code.
Plaintiff initiated this lawsuit on October 30, 2019, seeking $1,185.60. Allstate moved to dismiss. Plaintiff filed an Amended Complaint claiming that $64.00 was owed because Allstate denied CPT Code 76140 billed on April 12, 2019 and August 8, 2019.
Conclusions of Law
The PIP Statute is designed to ensure the “swift payment of PIP benefits.” Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 331-32 (Fla. 2007) [32 Fla. L. Weekly S453a] (quoting State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1077 (Fla. 2006) [31 Fla. L. Weekly S358a]). Section 10 effectuates this purpose by providing insurers one last chance to pay any overdue benefits and avoid a lawsuit and exposure for fees. MRI Assoc. of America, LLC a/a/o Ebba Register v. State Farm Fire and Casualty Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. In describing the obligation on the provider to set forth the overdue payment in its Demand, Section 10 uses the words “specificity,” “itemized,” “specifying” and “exact.” See Section 627.736(10)(b)(3), Fla. Stat. (2019).
In this case, Plaintiff’s demand did not satisfy the plain language of Section 10. More than a year and a half prior, the Florida Supreme Court ruled that Allstate’s policy was sufficient to elect the fee schedule payment methodology at Section (5)(a) of the PIP Statute. Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. Yet, Plaintiff’s demand did not account for application of the fee schedules. The end result was Plaintiff demanding that Allstate breach the contract and the PIP statute by paying $5,011.
Second, the presuit demand violated the plain language of Section 10 and failed to provide Allstate notice and an opportunity to avoid this litigation.
Lastly, the presuit demand included services (August 8, 2019), for which payment was not yet due, much less overdue, as required by Section 10. See Section 627.736(10)(a), Fla. Stat. 2019) (“Such notice may not be sent until the claim is overdue.”) For this reason alone, the demand must fail. See Lake Worth Emergency Chiropractic Center, P. A., (a/a/o Ryan Garter), v. State Farm Mut. Auto. Ins. Co, 22 Fla. L. Weekly Supp. 65a (Fla. 15th Cir. (App.) July 14, 2014) (invalidating demand that included services, which were not previously billed and were therefore neither due nor overdue).
For the foregoing reasons and consistent with case law binding on this Court, this Court finds that the Plaintiff’s presuit demand is invalid for failure to comply with Section 10. See MRI Assoc. of America, LLC a/a/o Ebba Register, supra; Venus Health Center (Joaly Rojas) v. State Farm, 21 Fla. L. Weekly Supp. 496a (Fla. 11th Cir. (App.) March 12, 2014) (“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”); Government Employees Ins. Co. v. Open MRI of Miami-Dade, Ltd., 18 Fla. L. Weekly Supp. 337a (Fla. 11th Cir. (App.) February 16, 2011); Luis A. Hernandez v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 232c (Fla. 11th Cir. (App.) January 17, 2007); see also Alliance Spine & Joint I, Inc. (Paul Volcy) v. USAA Cas. Ins. Co., 24 Fla. L. Weekly Supp. 555c (Fla. 11th Cir. Cty. Sept. 13, 2016) (invalidating demand that failed to account for application of the fee schedules).
THEREFORE, IT IS HEREWITH ORDERED AND ADJUDGED that:
1. Allstate’s Motion for Summary Judgment regarding Deficient Demand is GRANTED and this case is abated for 90 days for Plaintiff to submit a compliant presuit demand.
2. Plaintiff shall have thirty (30) days to submit a new demand and copy Allstate’s undersigned counsel. Allstate shall have thirty (30) days to respond to the demand.
3. Payment in response to the demand will not be deemed a confession of judgment in this case and will not subject Allstate to attorneys’ fees or costs.
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1The August 8, 2019 bills were received September 4, 2019 and processed September 11, 2019, five days after Plaintiff sent out its Notice of Intent to Initiate Litigation.
