PIP Perspective: How can I correct an error made on a demand letter?

December 4, 2014 in

What are demand letters?

A law student will always remember three key phrases upon graduation: offer, acceptance, consideration. When choosing to litigate in the field of Personal Injury Protection (PIP), a PIP attorney will always remember that a demand letter is due prior to filing a complaint. Moreover, any competent PIP attorney will also be able to tell you that a lawsuit cannot be filed prior to giving the insurer 30 days to reply to any demand letter.

Demand letters are governed by Florida Statutes Section 627.736 (10). A demand letter must actually state that it is “a demand letter under s. 627.736 (See F.S. Section 627.736(10)(b)(2012).” A demand letter is likewise required to state with specificity the following the name of the insured and the claim number or policy number. The Third Section of 627.736(10)(b) likewise states that to the extent applicable, name of a medical provider, an itemized statement specifying exact amounts, date of treatment, services, etc.

For the purposes of this discussion, we will not delve into any greater detail than the above sections. The question then becomes, what happens when a demand letter does not contain all of the required information (pursuant to Florida Statutes Section 627.736(10)(b)?

Specific Demand Letter Requirements

Too much or not enough? Many ask the common questions: Can I file something that allows me to correct my errors? Or is substantial compliance enough?

The answer to both of the above questions is possible! Let’s start with the first question:

Motions to Abate: Within the Court’s Discretion

A demand letter may have been sent to the insurance company requesting reimbursement for medical services performed by the doctor. The demand letter may have failed to provide the amount claimed correctly, may have omitted the date of treatment, etc. The first option for the court is to dismiss the action altogether. A prudent defendant would file his/her answers/affirmative defenses and would indicate that the plaintiff has failed to fulfill a “condition precedent” required by the Demand Letter Statute (627.736(10)(b). The court can then decide whether dismissal is proper based on the omitted or incorrect information.

Another option is requesting the court to abate the action and allow the plaintiff time to correct its omissions/errors. In laymen’s terms, a Motion to Abate will allow the plaintiff a “do-over.” The court will instruct the plaintiff to “re-do” its demand letter in a specific amount of days. The defendant will then have a specific amount of days within which to respond to the demand letter. If the defendant does not pay the full amount, omits payment, or incorrectly pays, the action is re-instituted. However, if the plaintiff fails to send a demand letter out within the court’s timeframe (usually 30 days), the defendant will have the option of setting aside the abatement and proceeding on a Motion for Summary Judgment. It is within the court’s discretion to allow for abatement. Generally speaking, abatement should be allowed if the error does not affect a material term of the demand requirements. Material terms such as the number of services, name of insured, name of a medical provider, etc. should be included. Many courts invalidate demand letters that do not include the above-mentioned information.

Courts Interpretations of Demand Letters

Courts’ interpretations of demand letters vary. However, there are many cases that allow substantial compliance with the demand letter requirements. In the case of Rapid Rehabilitation, Inc. v. United Auto. Ins. Co., (14 Fla. L. Weekly Supp 180a) the plaintiff forgot to include the deductible in its calculation of how much was due for medical treatment provided. The court held that even though the deductible wasn’t accounted for, “the insurer is in the better position to determine whether deductible and could easily calculate disputed amount since no payments were made.”

Other courts have deemed demand letters compliant despite failing to include the phrase, “This is a demand letter under s. 627.736(10).” So long as the letter specifies the statutory scheme upon which the demand was made and was sent to the insurance company’s PIP representative and was sent to the PIP demand letter mailbox, substantial compliance is good enough. A demand letter will not be invalidated solely because the key phrase is not included within the body of the letter. Once again, the key inquiry is whether the insurer could reasonably be expected to figure it out.

Likewise, the omission of the insured’s name or the addition of an incorrect insured’s name will not necessarily invalidate a demand letter. Moreover, the same goes for the claim or policy number. Courts will look at the entire demand letter to identify whether or not the insurer should know the information or whether the insurer can readily access said information by looking at the letter as a whole.

Demand letter interpretation varies from jurisdiction to jurisdiction. Some judges are more lenient than others. One judge in one jurisdiction may even have a different opinion than another in the same courthouse! The modern trend is for the court to look at the “entirety of the demand on a case-by-case basis and determine whether the insurer could reasonably be expected to figure it out.”

Review Demand Letters

Demand letters are tricky documents to analyze. The better practice is to have an experienced Personal Injury Protection attorney review the demand letter prior to it being sent to the insurance company. We are able to review the document, suggest adding/omitting information, and this review is FREE! Yes, we do not charge for the review of your demand letter documents, so feel free to give me a call if you have any questions.