By Kelsey P. Hayden, Esq.
“Specific,” “precise,” and “exact” are words that come to mind when considering Florida Statute 627.736 (10), also known as the “demand letter” section of Florida’s No Fault Statute. While unassuming at first, this section is the focal point of many county, circuit and district court decisions, the most recent of which have changed the landscape of the demand letter requirement.
The demand letter is now a statutory condition precedent to bringing a lawsuit for Personal Injury Protection (PIP) benefits; however, at one point in time, a demand letter was not required. Then, on June 19, 2001, Subsection 627.736 (11), Florida Statutes (2001) was enacted and adopted the demand letter as a condition precedent to filing a lawsuit for PIP benefits.[1] Naturally, this adoption led to a wave of litigation with courts varying in their opinions as to the level of specificity mandated by Florida Statute 627.736 (10).[2] For instance, in Professional Diagnostic Reading a/a/o Ivette Orengo-eyes v. United Services Auto. Ass’n, 19 Fla. L. Weekly Supp. 204 (9th Judicial Circuit, August 29, 2011), the Court said that there is no language in the statute “that requires the medical provider to compute the exact amount owed or that a Demand Letter reflect prior payments made by the insurer.” Similarly, in Kadosh Medical Services, Inc. a/a/o Davila Perez v. State Farm Fire & Casualty Co., 19 Fla. L. Weekly. Supp. 207 (11th Judicial Cir., June 7, 2011), the Court found that there is “no language contained [in the statute] that requires the medical provider to compute the exact amount owed or that a Demand Letter reflect prior payments made by the insurer.”
However, more recent case law has evolved the specificity requirements of a demand letter. The 17th Judicial Circuit, in their appellate capacity, recently ruled in Mercury Insurance Company of Florida v. Harvey Nelson, 20 Fla. L. Weekly Supp. 122a (17th Judicial Cir., September 12, 2012), that “[i]t is a condition precedent, under 627.736 for the plaintiff to submit a demand letter to the insurer that specifies a compensable amount which the insurer could pay the provider to avoid litigation. Unless the insurer is put on notice of the exact amount to pay in order to avoid litigation, the purpose of the demand letter, the entire purpose of submitting a demand letter would be defeated.” (Emphasis added). And then, in State Farm v. Douglas Diagnostic Center, Inc., a/a/o Jainek Perez, 25 Fla. L. Weekly Supp. 942b (17th Judicial Circuit, December 18, 2017), the 17th Judicial Circuit ruled that the plain and unambiguous language of the statute mandates that the pre-suit demand letter “shall state with specificity” an “itemized statement specifying each exact amount” due.
These recent cases have sharpened the specificity requirements of a demand letter, mandating that the demand letter be specific, precise and exact to survive the summary judgment stage of litigation—a sharp contrast to the era preceding the June 19, 2001 enactment of Fla. Stat. 627.736 (11). While seventeen years of evolution have drastically altered the demand letter, the law, like nature, is constantly evolving, and nothing is immune to that change—not even a demand letter.
[1] See Ch. 2001-271, § 11(3), at 2948, Laws of Fla.
[2] The statutory requirements originally contained in section 627.736(11), Florida Statutes (2001), are now located in section 627.736(10), Florida Statutes (2009). Section 627.736(11) was renumbered as subsection (10) by chapter 2007- 324, section 20, Laws of Florida, which became effective January 1, 2008. See Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010).
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