11 Fla. L. Weekly Supp. 4b

Insurance — Personal injury protection — Claim forms — Countersignature — Section 627.736(5)(a) does not require HCFA forms to be countersigned by insured when the medical provider has accepted an assignment of benefits — Summary judgment in favor of insurer reversed and remanded — Attorney’s fees awarded to medical provider contingent on prevailing on recovery on policy

ALL CARE HEALTH and WELLNESS, a/a/o WILLEM GACHELIN, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-031AP. L.C. Case No. 01-11676 SP 05. November 18, 2003. An Appeal from County Court, Miami-Dade County. Counsel: Spencer G. Morgan, for Appellant. Craig J. Trocino, for Appellee.

(Before SCOTT M. BERNSTEIN, DAVID C. MILLER, and MARY R. BARZEE, JJ.)

(BERNSTEIN, J.) All Care Health and Wellness Center (“All Care”), a health care provider, appeals a summary judgment granted in favor of an insurance company, United Auto Insurance Company, (“UAIC”). A Mr. Willem Gachelin was involved in an automobile accident in April, 2001, in which he suffered personal injuries. Mr. Gachelin had an insurance policy with UAIC which provided personal injury protection (PIP) benefits. Mr. Gachelin sought medical treatment from All Care. Mr. Gachelin executed an assignment of PIP benefits for medical services to All Care authorizing All Care to bill UAIC directly for payment for Mr. Gachelin’s treatment. The medical bills were submitted timely to UAIC on approved HCFA forms. In the space indicated on the forms for countersignature by the insured, however, each was marked “signature on file.” UAIC refused to pay the claim because Mr. Gachelin did not countersign each individual form.

As a result, All Care filed suit in Miami-Dade County Court to recover PIP benefits. UAIC moved for summary judgment, alleging that All Care failed to comply with the requirements of the HCFA form and Fla. Stat. §627.736. The Court granted the motion on January 10, 2002. After numerous opinions from this Court found against UAIC under these exact circumstances, All Care filed a motion for relief from judgment, which was denied on October 29, 2002. Appellant filed a Notice of Appeal timely and a motion for attorney’s fees pursuant to Fla. Stat. §627.428.

We reverse. The trial court erred when it granted the UAIC’s motion for summary judgment. The trial court held that an insured’s failure to countersign HCFA forms discharges the insurance company’s obligation to pay PIP benefits for medical care and treatment rendered by a health care provider. This simply is not what Fla. Stat. §627.736 requires.

The standard of review for a summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Section §627.735(5)(a) and (d) of the Florida Statutes reads:

5) Charges for treatment of injured persons.

(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian . . . .

…..

(d) All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. . . . For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills unless the statements or bills comply with this paragraph.

All Care contends that Section §627.735(a) does not apply to cases involving assignments of benefits. It argues that once an insured assigns his benefits to the medical provider, the insurer’s option of paying the insured directly is precluded, thereby rendering this section moot and inapplicable to cases involving assignments. Thus, the insured’s failure to countersign the HCFA form, pursuant to this section, does not discharge the insurer’s obligation to pay PIP benefits for medical care and treatment provided by the appellant.

In contrast, UAIC contends that paragraph (a) requires the insured to countersign every HCFA form, regardless of whether there exists an assignment of benefits. UAIC’s position is that the medical provider has not complied with the requirements under Section §627.736(a) for payment of benefits unless he obtains the insured’s countersignature on the form, and that noncompliance with this section discharges the insurer’s obligation to pay PIP benefits. In addition, UAIC argues that the absence of the insured’s countersignature invalidates the assignment of benefits, thereby making the countersignature a mandatory requirement for payment of PIP benefits.

While there is no controlling case law, other decisions from this Court clearly hold that Section §627.736(5)(a), Fla. Stat., does not require the HCFA forms to be countersigned by the insured when the medical provider has accepted an assignment of benefits. See Total Health Care of Florida Inc. v. United Auto. Ins. Co., 9 Fla. [Law Weekly] Supp. 659a (Fla. 11th Cir. Ct. 2002), rev. denied 9 Fla. [L. Weekly] Supp. 737a (2002); see also Hialeah Medical Associates, Inc. and Diagnostic Studies, Inc. v. United Auto. Ins. Co., 9Fla. [L. Weekly] Supp. 738b (Fla. 11th Cir. Ct. 2002).

In Total Health Care Inc., the court examined the plain language of the statute and held:

When examining the plain language of Section 627.736(5)(a), the use of the word “may” in paragraph 5(a) indicates that there is an option on the part of the insurance company to pay the medical provider directly or the insured. See, The Premier Center For Personal Injuries v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 501 (Fla. Dade Cty. Ct., 2001); See also, Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458, 459 (Fla. Dade Cty. Ct., 2001). However, an assignment of benefits precludes the insurer from exercising the option of paying the insured. See, The Premier Center For Personal Injuries, 8 Fla. L. Weekly Supp. at 502; see also, Chase, 8 Fla. L. Weekly Supp. at 458. Therefore, paragraph 5(a) does not apply when there is an assignment. See, The Premier Center For Personal Injuries, 8Fla. L. Weekly Supp. at 502; See also, Health Care Associates of South Florida, Inc., and Miami Medical Group, Inc., v. United Automobile Ins. Co., 9 Fla. L. Weekly Supp. 397b (Fla. Dade Cty. Ct. 2002).

Further, when addressing the legislative intent of the PIP Statute, this court stated:

It is well established that the fundamental objective of the PIP statute is to guarantee swift and virtually automatic payment of benefits and the PIP statute should not be interpreted in a manner that leads to an unreasonable or absurd result or a result obviously not intended by the legislature.” Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458, 459 (Fla. Dade Cty. Ct., 2001); see also United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999).

In the instant case, it is undisputed that the insured executed an assignment of benefits from the insured to the medical provider. Based on case law and the plain language of the statute, the insured’s failure to countersign HCFA forms does not discharge the insurance company’s obligation to pay PIP benefits for medical care and treatment provided by the medical provider in cases involving assignments. The trial court’s summary judgment must therefore be reversed.

Appellant has also requested attorney’s fees in this matter. Section §627.428 of the Florida Statute reads:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. [emphasis added].

This statute authorizes the appellate court to “adjudge or decree against the insurer and in favor of the insured or its beneficiary a reasonable sum as fees or compensation when prosecuting the suit in which recovery is had.” Section §627.428(1), Fla. Stat. (1995). When examining the plain language of Section §627.428(1), the insured must prevail with a recovery on the policy to be entitled to attorney’s fees. While appellate attorney’s fees may not be awarded prior to resolution of a case on its merits, Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994), a court should do so if the insured ultimately prevails with a recovery on the policy. Tench v. American Reliance Ins. Co., 671 So.2d 801, 802 (Fla. 3d DCA 1996).

This action clearly falls within the scope of Section §627.428, Fla. Stat. Therefore, we find that, if appellant ultimately prevails with a recovery on the policy, appellant should recover attorney’s fees as well. (DAVID C. MILLER and MARY R. BARZEE, JJ., concur.)

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