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imagesstaffross abramowitz personal inury attorney fort lauderdale 2018Insurance -- Personal injury protection -- Demand letter -- Failure to include in demand letter amounts allegedly paid by insurer, but which medical provider denies having received, does not render demand letter deficient -- PIP statute does not require provider to calculate exact amount previously paid by insurer and amount due, and lack of accounting for prior payments did not prejudice insurer that made those payments by depriving it of opportunity to adjust claim for second time and avoid litigation

BRIAN ELIAS DCM, LLC a/a/o Ernold Banos, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-022281 COCE 50. December 8, 2016. Peter B. Skolnik, Judge. Counsel: Ross Abramowitz, Law Office of Ross Abramowitz, Fort Lauderdale, for Plaintiff. Alan Blose, Vernis & Bowling of Broward, P.A., Hollywood, for Defendant.


THIS CAUSE came before the Court for hearing on October 21, 2016 on Plaintiff's Motion for Summary Judgment on compliance with Florida Statutes § 627.736(10), and Defendant's Motion for Summary Judgement as to Invalid Pre-Suit Demand Letter. The Court, having reviewed the motions and entire Court file, read relevant legal authority; heard argument, and been sufficiently advised in the premises, finds as follows:

The issue in this case is whether the Plaintiff complied with its condition precedent of placing the Defendant on notice of its intent to initiate litigation by sending a Pre-Suit Demand Letter (“PDL”) that satisfies Florida Statute § 627.736(10). The Defendant's position is that the Plaintiff's Pre-Suit Demand Letter fails to satisfy § 627.736(10) because it failed to account for “prior payments made” and thus does not comply with the plain language of § 627.736 (10). The Plaintiff's position is that it satisfied the condition precedent because it attached an itemized statement to its PDL. The Plaintiff also alleges that it had no duty to compute the amounts previously paid or the exact amount owed as there is no such requirement in the statute. The statute state, in pertinent part:

(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 benefits 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 . . . (emphasis added).

The facts of the case are as follows. On November 1, 2011, Enrold Banos (“Claimant”) sustained injury as a result of the subject motor vehicle accident and received treatment from the Plaintiff. The Claimant treated at the Plaintiff's facility from November 1, 2011 through February 7, 2012. For these services, the Plaintiff sent Defendant four sets of bills. The first set was for dates of service 11/1/2011 to 12/3/2011 (“Set 1”), the second set was for dates of service 12/6/2011 through 1/3/2012 (“Set 2”), the third set was for dates of service 1/6/2012 through 2/1/2012 (“Set 3”), and the fourth set are for dates of service 2/3/2012 through 2/7/2012 (“Set 4”).

On February 1, 2012, the Plaintiff billed a total of $302.58 for CPT 97110 (Therapeutic Procedure) and CPT 98940 (CMT). The bill was received by the Defendant on February 8, 2012. The Defendant approved the total amount of this bill. The total approved amount was paid at 80% for a total paid amount of $242.06. The Defendant argues that payment for these services was issued by Defendant to Plaintiff on February 14, 2012. On February 3, 2012-February 7, 2012, the Plaintiff billed a total of $1,059.96 for the following CPT codes: 97110 (Therapeutic Procedure) three times, 98940 (CMT) three times, 99213 (Established patient evaluation). These bills were received on February 15, 2012. The Defendant approved the total amount of this bill. The total approved amount was paid at 80% for a total paid amount of $847.97. The Defendant argues that payment for these services was issued by Defendant to Plaintiff on February 14, 2012. The Plaintiff contends that it never received these payments.

On March 20, 2012, a pre-suit demand letter was submitted to the Defendant by the Plaintiff. Said demand letter specified dates of service November 1, 2011-February 7, 2012. The demand letter indicates charges totaling $12,666.86 ($10,000 at 80%) and states that $0.00 had been paid for said dates of service. The Plaintiff attached to its PDL CMS 1500 forms which the Plaintiff believes constitute an itemized statement. The Plaintiff argues that the CMS 1500 forms contained the relevant information to allow the Defendant to see the exact dates of service at issue, the CPT codes at issue, the exact charges for those codes and the description of the treatment, service or accommodation provided. Therefore the Plaintiff believes its PDL is in compliance with § 627.736(10). Defendant, however, argues that because the PDL, even with the attached CMS 1500 forms fails to account for the abovementioned payments, the PDL is not in compliance with § 627.736(10).

In support of its argument, the Defendant relies on the case of MRI Associates of America, LLC a/a/o Ebba Register v. State Farm Fire and Cas. Co., 61 So.3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b]. In this case, the Defendant argues that the Fourth District Court of Appeal held that a demand letter must specify the exact amount owed by the insurer. Id. at 465. The court went on to hold that § 627.736 “requires precision in a demand letter” and that the “statutory requirements surrounding a demand letter are significant, substantive preconditions to bring a cause of action for PIP benefits.” Id. As Plaintiff's PDL fails to include prior payments made by the Defendant, the PSL fails to state that exact amount due and owing by the insurer. The Defendant cited other court's opinions in support of the Defendant's reading of MRI Associates of America, LLC. See Fountain Imaging of West Palm Beach, LLC (a/a/o Charlotte Jennings) v. Progressive Express Ins. Co. 14 Fla. L. Weekly Supp. 614a (Fla. 15th Jud. Cir App. March 30, 2007); Mercury Ins. Co. of Fla. v. Harvey Nelson, 20 Fla. L. Weekly Supp. 122a (Fla. 17th Jud. Cir App. September 24, 2012); Wide Open MRI, a/a/o Susana Hinestroza v. Mercury Ins. Group of Florida, 16 Fla. L Weekly Supp. 513b (Fla. 17th Jud. Cir. App. March 13, 2009); Mcnamara Chiropractic Center, PA, v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 849a (Cty. Ct. Fla. 17th Jud. Cir. December 10, 2014); North Lauderdale Chiropractic Center, Inc., v. State Farm Fire and Casualty Co., 18 Fla L. Weekly Supp. 1047a (Cty. Ct. Fla. 17th Jud. Cir. June 7, 2011).

Alternatively, the Plaintiff also cites to MRI Associates of America, LLC. However, the Plaintiff argues the Fourth District Court of Appeal stated, “The language of subsection 627.736(10)(b)3 requires precision in a demand letter by its requirement of an ‘itemized statement specifying each exact amount.' ” MRI Associates at 465. The Plaintiff also relies on Kingsway Amigo Insurance Company v. Ocean Health, Inc., a/a/o Belizaire Gomez, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], wherein the Fourth District Court of Appeal stated, “The requirement that a pip policy specify the applicable payment methodology is consistent with the requirement that a subsection 627.736(5)(d) health insurance claim form and subsection 627.736(10)(b)3. Demand letter specify “each exact amount” owed. See MRI Assocs. Of Am., LLC v. State Farm Fire & Cas. Co., No. 4D10-2807 (Fla. 4th DCA May 4, 2011) [36 Fla. L. Weekly D960b]. Such Precision is not possible where the payment calculation methodology is in doubt”. Kingsway Amigo. The CMS 1500 forms in this case list each exact amount at issue, as well as each date of service and each CPT code at issue. The “exacting” standard goes to the itemized statement, not any previous amounts paid or calculations that the Defendant asserts that the Plaintiff must include in its PDL. This view is also in accord with the legislative intent of requiring a PDL, which is to give the insurance carrier a thirty-day “safe harbor” to review the bills submitted for a second time and confirm that none of the bills or dates of service were inadvertently missed the first time they were submitted by the provider, or that the bills were inadvertently not adjusted by the insurance carrier. The purpose of this “safe harbor” is not to advise the insurer of information that it already has, but to advise the insurer of information that it may not have, to wit: bills for dates of service that may have been inadvertently unaccounted for by the Defendant or payments inadvertently sent to the wrong address. Although, the Defendant alleges that § 627.736(10) requires the Plaintiff to calculate the exact amount previously paid by the Defendant and amount at issue, this Court rejects the Defendant's reading as there is no such language supporting such a requirement.

Additionally, the Plaintiff argues that as a statutory condition precedent to suit, the provider is prohibited from initiating litigation until after the insurance company gets this second opportunity to adjust the claim. In order to deny access to the courts, the Defendant must be prejudiced by a material breach of the condition precedent.

In this case, the Defendant claims that it was prejudiced by the alleged error in Plaintiff's PDL and therefore could not properly adjust the claim for the second time. The Defendant, as the payor, however, is acutely aware of its prior payments. This Court is at a loss as to what benefit is derived by asking the Plaintiff to advise the Defendant of information already in it possession (and of its own making). The Defendant is not prejudiced by not being advised of the amount paid by said Defendant. Under the facts of this case, the Court finds that the failure to put the amount allegedly paid by the Defendant is insignificant to the Defendant's second chance to adjust the claim.

Therefore, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Summary Judgment Re: Demand Letter Compliance is GRANTED and Defendant's Motion for Summary Judgment as to Invalid Pre-Suit Demand Letter is DENIED.

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