28 Fla. L. Weekly Supp. 536b
Online Reference: FLWSUPP 2806MENEInsurance — Personal injury protection — Demand letter — Sufficiency — Demand letter for transportation costs did not satisfy requirements of section 627.736(10) where letter did not specify medical clinic to which insured traveled, dates of treatment for which he traveled, or exact amount due and owing — Policy limits were properly exhausted
ORLANDO MENENDEZ, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012 1780 SP 25 (04). June 4, 2018. Rehearing Denied February 6, 2020. Carlos Guzeman and Robert T. Watson (On Rehearing), Judges. Counsel: George A. David, George A. David, P.A., Coral Gables, for Plaintiff. Abbi S. Freifeld, Roig Lawyers, Deerfield Beach, for Defendant.
[Notice of Appeal filed February 18, 2020.]
FINAL JUDGMENT FOR THE DEFENDANT
THIS CAUSE having come before the Court for hearing on February 22, 2017 on Defendant’s Motions for Final Summary Judgment regarding Invalid Demand Letter and regarding Exhaustion of Benefits, the Court having reviewed the Motions and supporting affidavits; the entire Court file; and reviewing the relevant legal authorities; having heard arguments by Counsel; having made a thorough review of the matters filed on record; and having been otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED:
Background
This is an action by the Plaintiff, Orlando Menendez (herein after referred to as “Menendez” 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, the Plaintiff sought alleged expenses relating to mileage incurred to and from his medical providers as a result of an alleged February 19, 2008 motor vehicle accident.
At the time of the accident, Orlando Menendez was covered under a policy of insurance which was issued by the Defendant, STATE FARM which provided personal injury protection (“PIP”) benefits up to $10,000.00, with no medical payments coverage.
On February 22, 2017, this Honorable Court heard argument on Defendant’s two Motions for Final Summary Judgment regarding invalid demand letter and exhaustion of benefits.
Invalid Demand Letter
It is undisputed that on December 16, 2011, the Plaintiff, Menendez, through counsel George A. David, P.A., sent a pre-suit demand letter to the Defendant, STATE FARM requesting alleged overdue PIP benefits under §627.736(10), Florida Statutes, for a claim for “PIP transportation expenses.” The letter does not state the amount at issue, the dates of service for which Mr. Menendez incurred his transportation expenses, or the address of the clinic(s) to which Mr. Menendez traveled to and from. Attached to Plaintiff’s demand was a letter dated November 10, 2011 — Plaintiff’s first request for transportation expenses — from George A. David, P.A., specifically advising that Mr. Menendez traveled from “308 W. 18th St for 56 treatments with the South Miami Health Center and returned to 308 W. 18th St. for 168 miles.” Furthermore, said correspondence indicates that “Orlando Menendez’s reasonable transportation expense is 61 cents a mile”. Said attached November 10th correspondence does not state the exact amount at issue, the dates of service for which Mr. Menendez incurred his transportation expenses, or the address of the clinic(s) to which Mr. Menendez traveled to and from.
Argument
The Defendant State Farm 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, that 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 or any statement specifying the exact amount due, the dates of treatment for which Mr. Menendez incurred his transportation expenses, or the address of the clinic(s) to which Mr. Menendez traveled to and from.
In response, the Plaintiff, Mr. Menendez, does not dispute that its Demand Letter did not include the address of the medical clinic to which he traveled to and from, the dates of treatment for which he incurred his transportation expenses, or the exact amount due and owing, but instead argues that Defendant could have discovered what was at issue, the dates of service and the clinic address(es) by reviewing its claim file, and that by issuing payment in response to Plaintiff’s Demand Letter, albeit less than what Plaintiff alleges, is evidence that Defendant understood Plaintiff’s demand.
Moreover, the Plaintiff relies on testimony from the State Farm Claim Representative, Dean Rogers, that the Defendant has no evidence that the Plaintiff did not travel 168 miles to and from medical treatment, or evidence that the accident did not occur.
Findings of Law
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, 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.
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. However an insurer 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.
Exhaustion of Benefits
At hearing, the Defendant, by way of affidavit testimony from its claim representative, Mr. Dean Rogers, put forth evidence reflecting that STATE FARM made various PIP payments to certain medical providers and to the Plaintiff, Mr. Menendez, pursuant to the terms of the PIP insurance policy and in accordance with Florida Statute §627.736. These payments exhausted PIP Benefits in the amount of $10,000.00 on or about December 19, 2012, following the filing of the instant lawsuit.
Argument
The Defendant State Farm argues pursuant to Florida Statute §627.736 entitled “Required Personal Injury Protection Benefits; Exclusions; Priority; Claims”, (1) of “Required Benefits”, that “Every insurance policy complying with the security requirements of § 627.733 shall provide personal injury protection to the named insured. . .subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000.00 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death. . .” (Emphasis added). Consistent with the Statute, the Policy of insurance issued by the Defendant provided its insured, Mr. Menendez, with $10,000.00 in PIP benefits as a result of the February 19, 2008 automobile accident. The Defendant relies on the affidavit of Dean Rogers in support of its Motion, which sets forth that State Farm issued payments to Plaintiff’s medical providers and to Plaintiff in the amount of $10,000.00.
In response, the Plaintiff argues that Defendant’s Motion and supporting affidavit do not conclusively prove that payments were not made gratuitously or in bad faith. Plaintiff did not, however, provide this Court with any evidence to dispute that the benefits totaling $10,000.00 were paid, or any competent evidence tending to prove that any of the payments issued to other providers or to the Plaintiff were in fact gratuitous or otherwise made in bad faith.
Findings of Law
The Court, after reviewing the affidavit and deposition testimony of Dean Rogers, finds that benefits were properly exhausted. Moreover, the Plaintiff did not put forth any evidence to create any question of fact that the manner in which the benefits were exhausted was improper or gratuitous; and in finding that no genuine issue of material fact exists, no benefits are due and owing, and the Plaintiff has no entitlement to interest, penalty, or attorney’s fees and costs. The Court relies on Northwoods Sports Medicine and Physical Rehab. Inc. v. State Farm Mut. Auto. Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; GEICO Indemnity Co. v. Gables Ins, Recovery, Inc. a/a/o Rita Lauzan, 159 So.3d 151 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2561a]; Richard A. Sheldon, D.C., (a/a/o Travis Baliel) v. United Services Automobile Association, 55 So.3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a]; and Robert Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b].
Based upon the foregoing, the Court finds that the Defendant State Farm Mutual Automobile Insurance Company’s Motions for Final Summary Judgment are both hereby granted, and Final Judgment is hereby entered on behalf of Defendant, State Farm Mutual Automobile Insurance Company. The Plaintiff, Orlando Menendez, 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.
__________________[ON MOTION FOR REHEARING]
