22 Fla. L. Weekly Supp. 730a
Online Reference: FLWSUPP 2206KORNInsurance — Personal injury protection — Standing — Assignment sufficiently communicated insured’s intent to convey right to file lawsuit should provider feel it was not properly paid — Demand letter — Presuit demand letter met all statutory requirements where provider attached itemized statement setting forth name of providers who rendered treatment and services, exact amount, date of treatment, service, or accommodation, and the type of benefit claimed to be due — Fact that itemized statement showed zero balance does not change result — Statute does not require that demand letter itemize treatment or service by CPT code
ORLANDO ORTHOPAEDIC CENTER, (Ruth Korn), Plaintiff, vs. STATE FARM MUTUAL AUTO. INS. CO., Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 14-SC-2584-O. November 21, 2014. Honorable Andrew Cameron, Judge. Counsel: Jason C. Fezza, Rodier & Rodier, P.A., Hallandale, for Plaintiff. Matthew Corker, Conroy Simberg, et al., Orlando, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO DISMISS
THIS CAUSE having come before the Court for hearing on Defendant’s Motion to Dismiss, and the Court, having reviewed the motion, the applicable law, and the arguments of counsel find as follows:
This is a case where the Plaintiff, a medical provider, performed medical services for the claimant and submitted its bills to the Defendant for payment. The Plaintiff disputes the amount paid. The Defendant’s position is that the Plaintiff has no standing to bring a cause of action for its bills at issue, and that Plaintiff’s Pre-suit Demand Letter fails to satisfy Florida Statute §627.736(10).
THE PLAINTIFF HAS STANDING
The Plaintiff seeks standing to bring this case through its assignment of benefits contained in Plaintiff’s “Financial Policy & Consent” form signed by the insured, which specifically states:
“You agree to assign and authorize Orlando Orthopaedic Center to bill, collect, and/or negotiate payment by the insurance plan on behalf of your insurance benefits. . . .”
The Defendant argues that the above language failed to convey the right to bring suit to enforce any right under the subject policy of insurance. Based upon a review of the facts in the case and a review of the relevant case law, this Court finds that the Plaintiff has standing to bring this case.
A review of the appellate case law reveals that there is no legal distinction between a direction to pay and an assignment of benefits. In Progressive Express Ins. Co. v. McGrath, 913 So.2d 1281 (2nd DCA 2005) [30 Fla. L. Weekly D2622b], a medical provider filed a claim for unpaid PIP benefits. In looking at the language of the assignment, the Second District, stated, in pertinent part, the “Assignment of Benefits Form assigned to the Provider benefits payable under the policy for services rendered by the Provider. The form also authorized Progressive to pay such benefits directly to the Provider.” The Second District drew no distinction between a “mere” direction to pay and an assignment giving a provider the right to bring suit for unpaid PIP benefits.
In Schuster v. Blue Cross and Blue Shield of Florida, Inc., 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a], the Plaintiffs attempted to bring a lawsuit for unpaid health insurance benefits. The Fourth District stated that the Plaintiff assigned “their right to benefits to various health care providers, and consequently, had sustained no damages” and that “Where the Schusters assigned their contract rights to the health care providers at issue in this case, they assigned away their right to bring this cause of action for breach of contract against Blue Cross and or any resulting damages.” The assignment in Schuster was also a direction to pay. Also see Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So.2d 1210, 1212 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a] (“Courts have recognized that the medical service providers can assert claims for PIP benefits against insurers when an insured has assigned them the right to the benefits.”) and State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), (holding that a transfer of insurance proceeds to a hospital is considered avalid assignment of benefits.)
This Court relies on McGrath and Schuster in finding that the distinction between a direction to pay and an assignment of benefits with an inherent right to bring suit is artificial. Additionally, a review of the relevant case law “does not require the inclusion of additional language to specifically grant the ‘right to bring a lawsuit’ in the event proper payments are not made.” Center for Diagnostic Imaging v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 352b (Miami-Dade County December 23, 2013).
In the instant matter, however, this is not an issue, as this Court finds that Plaintiff’s assignment of benefits is more than a mere direction to pay. The Plaintiff’s assignment of benefits expressly conveyed the right to collect payment of insurance benefits. The language of Plaintiff’s assignment sufficiently communicates the insured’s intent to convey the right to file a lawsuit should Plaintiff feel it was not paid properly which is inherent in the right to collect.
PLAINTIFF’S DEMAND LETTER IS COMPLIANTWITH FLORIDA STATUTE §627.736(10)
The intent of Florida Statute §627.736(10) is to provide insurers notice and an opportunity to pay unpaid PIP benefits before a suit is filed to prevent unnecessary litigation and promote quick and efficient payment of overdue personal injury protection benefits.
The Defendant maintains that Plaintiff’s pre-suit demand letter is not compliant with Florida Statute §627.736(10) because it failed to delineate the specific CPT codes at issue, failed to provide the Defendant with notice of the exact amount due and owing, and failed to include a valid Assignment of Rights.
The Plaintiff’s position is that it its pre-suit demand letter is statutorily compliant because the letter listed the dates of service at issue, the total amount billed, the amount claimed to be due, and Plaintiff attached an itemized statement which set forth the date of the treatment/service, the type of treatment/service, the name of the medical provider who rendered treatment/services, and the exact amount for each treatment/service.
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.
(emphasis added in italics)
A plain reading of the statute shows that by the medical provider attaching a copy of it’s itemized ledger and assignment of benefits, and stating within it’s pre-suit demand letter the named insured, claim number, policy number, dates of service, amount billed, amount claimed to be due, the provider has fully complied with Florida Statute §627.736(10).
Nowhere in Florida Statute §627.736(10) does it state that the demand letter must state the exact amount that is ultimately determined to be due. Rather, Florida Statute §627.736(10) merely requires the demand letter must set forth the amount claimed to be due. In EBM Internal Medicine a/a/o Bernadette Dorelien v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 410a, the Honorable Gary Flower heard this very same “exact amount owed” argument from the Defendant/insurer and rejected it:
“[T]he Court is unclear, assuming it accepted the Defendant’s interpretation of F.S. § 627.736(10), how a claimant is supposed to be able to adjust a PIP claim to make a determination as to the exact amount owed. When factors such as application of the deductible, knowledge as to the order in which bills were received from various medical providers, and whether the claimant purchased a MedPay provision on a policy (as well as other issues) are unknown to the medical provider, knowledge as to the exact amount owed is virtually impossible. A strict construction of the statute only says that a pre-suit demand must specify “[t]o the extent applicable . . . an itemized statement specifying each exact amount . . . .” With the various factors that must be considered by the carrier when determining the exact amount to pay on a claim, and the fact that this information is readily available to the carrier and virtually never readily available to the medical provider submitting a claim, it is not reasonable to expect the provider to know the “exact amount owed” since said amount could vary amongst PIP applicants (depending on the language of each individual policy). Further, the Defendant fails to convince this Court of the consequence of failing to list the exact amount owed. This Court could surmise endless scenarios where the provider (or claimant) would need to know certain information in order to properly compute the exact amount owed based on a multitude of factors, including the ones listed above.”
Dorelien, at 410. (emphasis in original)
In this case, Plaintiff’s pre-suit demand letter meets all of the statutory requirements under Florida Statute §627.736(10), in that Plaintiff attached an itemized statement which set forth the name of the medical providers who rendered treatment and services, and each exact amount, date of treatment, service or accommodation, and the type of benefit claimed to be due. In short, the Plaintiff provided the Defendant with all the information necessary to properly process the claim in compliance with Florida Statute §627.736(10).
Although the itemized statement attached to Plaintiff’s pre-suit demand letter indicates that the assignee’s balance is zero, the itemized statement is sufficient to satisfy Florida Statute §627.736(10) as the statute only requires that the itemized statement specify each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due, which is what Plaintiff’s itemized statement details. As noted in Horizon Medical Group, Inc. v. United Automobile Insurance Co., 15 Fla. L. Weekly Supp. 823a (Fla.11th Judicial Circuit, April 16, 2008, Order of Judge Eli Breger), an insurer, such as the Defendant, which retains records as to amounts paid, the total amount of bills received, the order in which bills have been received, the manner in which bills have been applied to the deductible, and the remaining insurance benefits, is possessed of greater knowledge with regard to any given PIP claim as compared to an insured or medical provider to determine the amount which remains payable or may be payable under the policy of insurance. See also Mauricio Chiropractic Group a/a/o Rafael Quinones v. USAA Casualty Insurance Group, 18 Fla. L. Weekly Supp. 82b (Fla. 9th Judicial Circuit, September 1, 2010, Order of Judge Antoinette Plogstedt) (“The statute does not require the Plaintiff, or any claimant, to provide an insurer, including the Defendant, with the exact amount of PIP benefits which are ultimately determined to be due in a specific claim and/or case nor does the statute state that any alleged accounting oversight nullifies an otherwise compliant demand. Such an interpretation would frustrate the legislative intent of the PIP statute; especially in this case where the Defendant was not prejudiced and was able to investigate the claim and determine which amounts were paid and which amounts were not.”)
Additionally, nowhere in Florida Statute §627.736(10) does it state that the demand letter must itemize what Plaintiff claimed was due for each treatment or service by CPT code. As stated in Xtreme Chiropractic & Rehab, Inc. a/a/o Jeena Park v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 620a (Fla. 17th Judicial Circuit, January 29, 2013, Order of Judge Robert W. Lee), “There is nothing in F.S. s. 627.736(10) that provides for any such requirement and the Defendant’s posture that F.S. s. 627.736(10) requires an itemized statement for each and every service or treatment by CPT code essentially asks this Court to rewrite the statute, which this Court is not at liberty to do.” See also Bayfront Medical Center, Inc. a/a/o Ramsay Macleish v. USAA Casualty Ins. Co., 21 Fla. L. Weekly Supp.858a (Fla. 6th Judicial Circuit (Appellate) May 7, 2014) (“There is no requirement under the statute that CPT codes must be included in the Demand Letter.”)
The Defendant’s last argument as to why the Plaintiff’s demand letter is not compliant with Florida Statute §627.736(10) is that the Plaintiff failed to attach a valid Assignment of Rights. It is undisputed that the Plaintiff attached the assignment of benefits addressed by the Court hereinabove to its pre-suit demand letter, and accordingly, this Court holds that Plaintiff’s Assignment of Benefits is valid.
Since this Court has found that the Plaintiff’s assignment of benefits attached to the pre-suit demand letter was valid, and the Plaintiff’s pre-suit demand letter provided the Defendant with all the information necessary to properly process the claim, this Court finds that Plaintiff’s pre-suit demand letter is compliant with Florida Statute §627.736(10).
Therefore, it is hereby ORDERED and ADJUDGED:
1. Defendant’s Motion to Dismiss is DENIED.
2. Defendant shall have twenty (20) days from the date of this Order to file an Answer to Plaintiff’s Amended Complaint.
* * *