Friday, September 23, 2016

A Dozen (12) Parts to A Sufficient Demand Letter Under The Florida PIP Statute; Fla.Stat. 627.736(10)




A constant area of interest for Defense attorney’s when trying to win a Personal Injury Protection (“PIP”) on a technicality and not on the merits is to attack the demand letter. When PIP was first established there was no requirement for a “Demand Letter”. A lot of attorney did PIP and were fruitful in their efforts as the lawsuits would essentially have a lot of “got-ya” moments and would require for big settlements further down the litigation trail. To combat these types of scenarios the legislature enacted section 10 of the PIP statute to put the insurance companies on notice of what you were seeking to possibly sue for, allowing them 30 days to pay the claim properly or face suit.
Section 10 of Florida Statute 627.736 reads:

(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.
(c)Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if requested by the claimant in the notice, when the insurer pays the claim. Such notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection. Each licensed insurer, whether domestic, foreign, or alien, shall file with the office the name and address of the designated person to whom notices must be sent which the office shall make available on its Internet website. The name and address on file with the office pursuant to s. 624.422 is deemed the authorized representative to accept notice pursuant to this subsection if no other designation has been made.
(d)If, within 30 days after receipt of notice by the insurer, the overdue  


claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer. If the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, no action may be brought against the insurer if, within 30 days after its receipt of the notice, the insurer mails to the person filing the notice a written statement of the insurer’s agreement to pay for such treatment in accordance with the notice and to pay a penalty of 10 percent, subject to a maximum penalty of $250, when it pays for such future treatment in accordance with the requirements of this section. To the extent the insurer determines not to pay any amount demanded, the penalty is not payable in any subsequent action. For purposes of this subsection, payment or the insurer’s agreement shall be treated as being made on the date a draft or other valid instrument that is equivalent to payment, or the insurer’s written statement of agreement, is placed in the United States mail in a properly addressed, postpaid envelope, or if not so posted, on the date of delivery. The insurer is not obligated to pay any attorney fees if the insurer pays the claim or mails its agreement to pay for future treatment within the time prescribed by this subsection.
(e)The applicable statute of limitation for an action under this section shall be tolled for 30 business days by the mailing of the notice required by this subsection.

As the statute indicates above certain requirements must be met in order to have a proper Demand Letter. If your attorney does not do a proper demand letter, you could lose a case you should have won, and of course would foot the bill for the legal fees of the Defense. So what needs to be in the demand letter? Let’s break it down portion by portion.

Written notice to the insurer-

While it may sound simple, this is an area where many attorneys who dabble in PIP make mistakes. Each insurance company has many entities. For example, people use the term USAA and may send a demand letter to USAA, however there is no such entity. There are actually four (4) different entities. An insured can only have been insured by one of these entities. An inexperienced attorney won’t know which one of the United Services Automobile Association, USAA Casualty Insurance Company, USAA General Indemnity Company or Garrison Property and Casualty Insurance Company the demand letter needs to be drafted to.

Bills must be overdue-

For a bill to be deemed overdue, the insurance company must have had the appropriate amount of time to review the claim and make a determination. This timing is usually 30 days after receipt of the bill. If you send a bill to an insurance company and they do not send you an Explanation of Benefits in approximately 45 days, your bill is overdue. If the insurance company has responded to the bill with an EOR, even one with payment, the bill is overdue. If you are within this time period the bill is not overdue and you cannot demand that date of service. Another recent decision now effects demand letters when it comes to EMC determinations and 6B requests. More can be read here.

If you get a 6B request for more documentation and you have sent all documentation you have, you should respond with a letter telling the insurance company you have provided them all the documentation you have and this letter is in response to their request and they need to make a determination. A 6B request stays the time for them to respond. Without a response your bill is not overdue. If you do respond they have 10 days to make a determination after receipt. Then your bill is overdue and can be demanded.

Must state that it is a “demand letter under s. 627.736-

This is self-explanatory. Do not try to rewrite the wheel. Title your document as such.

The name of the insured-

Another one that sounds simple enough but some people get wrong. As PIP follows the person and not the vehicle the person’s name here must be the patient’s name.

A copy of the assignment of Benefits (“AOB”)-

In most PIP cases, the Plaintiff is the medical provider and not the actual insured. Therefore the demand letter is coming from the medical provider. If this is the case you have to attach the AOB. If the patient is bringing the claim (not likely), it is not needed. For more information regarding Assignments of Benefits read here.

The claim number or policy number-

Either one works. The claim number or policy number should be located on the Health Insurance Claim Form.

The name of any medical provider-
This one may sound simple as well, but some medical facilities have multiple entities. Make sure it was sent with the correct entity as you cannot fix it when drafting the lawsuit. You would have to start over again. This is also very important when it comes to “doing business as”. When in doubt the best indicator of who performed the services is the FEIN (Tax ID number) located on the Health Insurance Claim Form.

An itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.-

The best indicator of this is the patient account ledger as it usually has each date of service, CPT Code, billed amount and amount paid by insurance company. The case law varies on whether you need to actually show amounts paid by insurance companies, but in an abundance of caution I always show the payments made to satisfy the “exact amount” requirement. If you do not have a ledger, other case law has shown that attaching the HCFA’s to the demand letter will suffice.

Delivered to the insurer by United States certified or registered mail, return receipt requested.-



Self-explanatory. Do not fight the statute on this one. Do what it says.
Notice must be sent to the person and address specified by the insurer for the purposes of receiving notices under this subsection-

Simply put, “the name and address on file with the office pursuant to s. 624.422 is deemed the authorized representative to accept notice pursuant to this subsection if no other designation has been made.” Find the name of that representative and send it directly to that address.

Make sure to constantly check the address and name as they change them at will. Your ignorance of the address is no excuse.

Wait 30 days from receipt-

There is some debate whether you need to wait the full 30 days for them to respond or if you can file after they have responded. Again, in an abundance of caution it is worth it to wait the extra days and do what the statute says.
Make sure you take into account an extra 5 days to allow for mailing. Also it is the date from RECEIPT, not the date you sent. Check the post office tracking on your certified mailing.

File Suit-

Now that the hard part is over, now all that is left to do is review their response/lack thereof and sue; if there is something to sue on.

What happens if any of the above are not done correct?-

As a former Defense attorney I can tell you this; drafting a Motion for Summary Judgment is a lot of billing. Even more billing goes into hearing the motion. If any of the above are not done properly it leaves the door open for a defense attorney to bill. You do not want that to happen. You want your demand letters to be tight and correct and therefore you either get paid at the beginning or you can settle the case or push it to trial without having to waste time on the demand letter issues.
At Dolman Law Group we have legal professionals who deal with Personal Injury Protection issues every day. We on average send out over 200 demand letters a week that are personally reviewed by a managing attorney to determine accuracy. When you choose Dolman Law Group to handle your PIP suits, you won’t have to sit around and wait for settlements because your attorney left the door open for a MSJ. If you need help in Demand Letters and your PIP matters call 727-451-6900 or email derek@dolmanlaw.com.  
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900