11 Fla. L. Weekly Supp. 1020b
Insurance — Personal injury protection — Claim forms — Provider/assignee that submitted HCFA forms that indicated that separate, distinct corporation with different federal taxpayer identification number from provider/assignee rendered billed services submitted fraudulent, misleading, and patently deceptive request for PIP benefits to prejudice of insurer and has no standing to prosecute claim — Coverage — Conditions precedent — Independent medical examination — Where insured failed to attend IME based on excuse that insured received IME notice in English and insured and/or aunt authorized to receive insured’s mail was only literate in Spanish, insurer is relieved of liability for PIP benefits
MEDICAL REHAB OF SOUTH FLORIDA, INC. (Diana Perez), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-018345 COCE 49. August 19, 2004. Kathleen Ireland, Judge. Counsel: Matt Hellman, P.A.
SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
This cause came on to be heard on the Defendant’s Motion for Summary Judgment and the Court having reviewed the Motion For Summary Judgment, the Court, having considered the Motion, the pertinent portions of the record, the arguments of counsel and being otherwise duly advised in the premises, finds that the following material facts are not disputed:
1) The Plaintiff filed a complaint seeking personal injury protection benefits for MEDICAL REHAB OF SOUTH FLORIDA INC., and submitted an assignment of benefits that assigned the insured’s benefits to MEDICAL REHAB OF SOUTH FLORIDA INC.. However, the HCFA’s submitted in conjunction with this case indicate in Box 25 the Federal Tax Identification Number of Evan J. Slatkin, D.C., P.A..
2) Both Evan J. Slatkin, D.C., P.A. and MEDICAL REHAB OF SOUTH FLORIDA INC., are two separate and distinct corporations with two separate and distinct Federal Tax Payer Identification numbers. According to Dr. Evan J. Slakin, the sole shareholder of both entities, the only explanation offered for this type of arrangement is “banking purposes”.
3) In New Hampshire Indemnity Co. v. Equinox Business Credit,10 Fla. L. Weekly Supp. 172a (Fla. 9th Cir. Ct. 2002) the circuit court held that to consider medical services to have been lawfully rendered “. . .the person, corporation, or other business entity that billed for Medical services [must] actually perform the medical services.” The court held that Box 25 must contain the true federal taxpayer identification number of the health care provider/supplier who rendered the service.
4) However, in this case the Plaintiff failed to lawfully complete Box 25 and 31 of the HCFA is by submitting the taxpayer identification number of Evan J. Slatkin, D.C., P.A. in Box 25, when it was MEDICAL REHAB OF SOUTH FLORIDA INC., that was the named assignee on the assignment of benefits.
5) The plaintiff failed to comply with applicable law by not providing the insurer with the valid federal taxpayer identification of the entity that rendered service and received an assignment of benefits for these services. Consequently, the service provider submitted a fraudulent, misleading, incomplete and patently deceptive request for personal injury protection benefits by listing a separate and distinct corporation in Box 25 as the assignee in the assignment of benefits. The Defendant is prejudiced by creating the possibility that the Defendant may improperly pay the wrong provider that may result in duplicate payments or a potential tax liability. Furthermore, the Plaintiff has no standing to prosecute this action resulting in the court having no subject matter jurisdiction.
6) The insured failed to attend an Independent Medical Examination reasonably scheduled by the insurer thereby breaching a condition precedent of the insurance contract with Defendant. The insured offered no explanation as to her non-attendance other than an affidavit from her aunt claiming the aunt was unable to read English. The aunt’s affidavit claimed that the aunt received the notice of IME on behalf of the insured and that the aunt had not been able to translate the notice of examination when she received it in English.
7) The aunt submitted an “affidavit” in English explaining the circumstances surrounding the niece’s, “the insured’s”, failure to attend the noticed IME but did not state who translated the “affidavit” for her. The fact is the “insured” niece was properly noticed by the Defendant after the mailing of a letter noticing her of the IME on April 10, 2003. The letter was received and signed for by the insured’s aunt on April 11, 2003 at the insured’s listed address. The letter was in English and the insured’s aunt indicated in her “affidavit” that she did not understand its importance until she had it translated at the Plaintiff’s office after the date the IME was scheduled. Nevertheless, the circumstances surrounding the insured niece’s failure to attend the IME are irrelevant to the insured nieces failure to comply with the condition precedent of the insurance contract with Defendant.
8) In Alonso v. Abel, Inc.,622 So.2d 187, the court cited the holding in Alonzo v. Board of Review,89 N.J. 41, 444 A.2d 1075 (N.J.), cert denied, 459 U.S. 806, 103 S.Ct. 30, L. Ed.2d 45 (1982) “[t]he courts have recognized, whether explicitly or implicitly, that in an English speaking country, requirements of ‘reasonable notice’ are satisfied when the notice is given in English.”. The 3rd D.C.A. went on to hold that the notice required under due process does not translate into requiring notice in Spanish.
9) In De Ferrari v. Government Employees Insurance,613 So.2d 101 (Fla. 3rd D.C.A. 1993) the insurer informed the insured that failure to comply with its reasonable request to attend the independent medical examination was a material breach to the policy. The court held that the “. . .insurer was justified in declining coverage based on the insured’s failure to attend the examination. Id.
10) The Defendant’s PIP policy required that the insured niece cooperate in any matter concerning a claim or lawsuit including submitting to medical examination at Defendant’s expense and which may reasonably be required. The insured niece failed to fulfill a condition precedent of the personal injury benefit’s policy with the Defendant and relieves the insurer of liability for PIP benefits.
11) Furthermore, the aunt’s failure to translate the notice letter into English when she spoke only Spanish is not a reasonable excuse for the insured niece’s failure to attend the reasonably scheduled Independent Medical Examination.
CONCLUSION OF LAW
I. The Plaintiff has no standing to sue and the court has no subject matter jurisdiction when an assignment of benefits has an assignee with a separate, distinct corporation and different federal taxpayer identification number from the entity in Box 31 and Box 25 of the billing statements. New Hampshire Indemnity Co. v. Equinox Business Credit, 10 Fla. L. Weekly Supp. 172a (Fla. 9th Cir. Ct. 2002).
II. The insurer is relieved of liability for PIP benefits when the insured fails to attend an IME based on an excuse that the insured received notice of IME in English and she was literate only in Spanish and/or the person authorized to receive the insured’s mail was literate in Spanish only.
FINAL JUDGMENT
IT IS HEREBY ADJUDGED that Medical Rehab of South Florida Inc., (a/a/o Diana Perez) take nothing by this action and Defendant Progressive Express Insurance Company, shall go hence without day. The Court reserves jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
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