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December 20, 2019, PIP, invalid pre-suit demand, failure to comply with conditions precedent, Summary Judgment

Style: Spine Correction f/k/a Alignlife a/a/o Griselda Rubio v. State Farm

Venue: County Court, Polk County, Florida

On May 13, 2018, State Farm’s insured, Griselda Rubio, was a restrained passenger in a motor vehicle involved in a rear end collision on Interstate 4. The insured sought medical treatment with the Plaintiff provider, Alignlife, between June 8, 2018 and October 29, 2018.

Upon receipt of Alignlife’s billing, State Farm issued payments for the services, totaling $15,000, in accordance with the Fla. Stat. 627.736, the policy language, the Medicare Part B fee schedules, and the Worker’s Compensation fee schedules until all benefits became exhausted.

On January 14, 2019, the Plaintiff medical provider served State Farm with a pre-suit demand pursuant to Florida Statute 627.736(10) alleging State Farm owed an additional $3,810.39 in PIP benefits for dates of service of June 8, 2018 through October 29, 2018. Fla. Stat. 627.736(10) requires that the provider serve a pre-suit demand at least thirty (30) days prior to the initiation of litigation. The demand is required to include a copy of the assignment of benefits and an itemized statement specifying each exact amount, the date of treatment, and the type of benefit claimed to be due.

Attached to the correspondence was a copy of the Plaintiff’s billing ledger, detailing all dates of service, the total billed by Plaintiff, and the total paid by State Farm. This ledger identified a total patient balance due and owing of $5,351.07. The ledger contained a column entitled “Insurance Responsibility” which identified a total insurance balance due and owing of negative $38.89. Thus, the amount alleged to be due and owing in the pre-suit demand was contradicted by the Plaintiff’s own billing ledger.

Following the filing of suit by Plaintiff, Defendant proceeded with a Motion for Summary Judgment for Failure to Comply with Conditions Precedent. Defendant argued that the Court must apply a strict compliance standard to the requirements of Fla. Stat. 627.736(10), the internal inconsistency between the demanded amount and the account balance fails to strictly comply with the requirements of the statute, and that Summary Judgment, not abatement, is the appropriate remedy.

Plaintiff argued for substantial compliance with the statutory requirements and took the position that a provider cannot know the exact amount of benefits due and owing and that it is the responsibility of the carrier to determine the amount due.

In the first ruling on strict vs. substantial compliance with Fla. Stat. 627.736(10) in Polk County, the Court held that the appropriate standard is strict compliance, the Plaintiff bears the responsibility of determining the amount due and owing when sending a pre-suit demand, and that Plaintiff’s demand failed to strictly comply with that responsibility due to the internal inconsistencies between the demand and the billing ledger.

The Court granted final summary judgment in favor of State Farm with no damages being awarded to Plaintiff.

March 22, 2019, Low back injury, radiofrequency ablations

Style: Jamie Ambrose v. James J. Ferro & State Farm Mutual Automobile Insurance Company

Venue: Circuit Court, Pasco County, Florida.

Plaintiff, Jamie Ambrose, had been a restrained driver in a vehicle stopped at a red light at the
intersection of U.S. 19 and Moog Road, New Port Richey, Pasco County, Florida. Defendant,
James Ferro, had been the driver of a vehicle that failed to stop, colliding with the rear of
Plaintiff’s vehicle.

Plaintiff alleged she sustained injury to her lumbar spine and underwent radio frequency ablation
with medical expenses totalling over $50,000. Plaintiff sought damages for future medical
expenses as well as past and future pain and suffering in excess of $1,000,000.

Experts testifying for Plaintiff included: Lee Ann Brown, DO, Jay Parekh, DO

Plaintiff denied pre-existing condition.

Experts testifying for Defendant included: Michael Foley, MD, Ananda Som, MD, Peter
Candelora, MD

Defendant argued that Plaintiff presented with pre-existing conditions.

The jury returned a verdict limited to the Emergency Department medical bill in the amount of
$7,442.46, finding no permanent injury had been sustained.

After collateral source offsets, net verdict was zero.

Last modified: April 4, 2019

November 1, 2018 CATASTROPHIC INJURY, VEGETATIVE STATE

Style: Earl B. Mason Sr. as Plenary Guardian of the ward, Earl B. Mason Jr. v. Robert Hines as Personal Representative of the Estate of Nyla Whiting

Venue: Circuit Court , Hillsborough County , Florida

Defendant Nyla Whiting, age 70, had been the driver of a 2002 Toyota Corolla traveling southbound on 78^th St., Tampa, Florida. Plaintiff Earl B Mason Jr. had been a pedestrian who walked into the path of traffic as he attempted to cross 78^th St eastbound, approximately 70 ft. from an available pedestrian crosswalk.

Ms. Whiting was unable to avoid striking Mr. Mason making impact between 18 and 22 mph.

Mr. Mason suffered catastrophic injuries and institutionalized in a vegetative state since the accident.

Past medical expenses was $546,742.

Plaintiff sought future medical expense and cost of life care in the amount of $5,514,679 in addition to unspecified amount for pain and suffering.

Experts on behalf of Plaintiff: Robert Martinez MD, Gerri Pennachio, vocational rehab, Brenda Mulder MBA, Steven Koontz PE

Experts on behalf of Defendant: Steven Bifulco MD, Cynthia Stephens Ph D, Charles O Funk Ph D, PE

The matter proceeded to arbitration October 29 2018 with arbitration award entered November 1 2018 in favor of Defendant.

No damages were awarded.