11 Fla. L. Weekly Supp. 94c
Insurance — Personal injury protection — Although noting that it appears inequitable to penalize medical provider for failure to submit claims within thirty days of treatment when failure was due to insured providing misinformation regarding identity of PIP carrier, appellate court affirms trial court ruling that medical provider is precluded from recovering payment for treatment — Court is bound by district court opinion holding that section 627.736(5)(b) was constitutional — Statutory amendment allowing providers who were given incorrect information to resubmit bills to correct carrier is not retroactive to date medical provider rendered treatment to insured
W.R. MEDICAL CENTER, INC., Appellant, v. WINDSOR INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-325 AP. L.T. No. 01-5927 CC 26. November 25, 2003. An Appeal from the County Court of Miami-Dade County, Lawrence D. King, Judge. Counsel: Charles L. Vaccaro, for Appellant. Fernando L. Roig, for Appellee.
(Before D. BRUCE LEVY, ARTHUR L. ROTHENBERG and VICTORIA PLATZER, JJ.)
(D. BRUCE LEVY, J.) Leslie Mayea was injured in an automobile accident. She received treatment at the facility of appellant, W.R. Medical Center, from November 8, 2000 to January 10, 2001. Ms. Mayea informed appellant that she had PIP insurance coverage through Progressive. Appellant sent the bills to Progressive within 30 days of treatment, pursuant to the requirement of Fla. Stat. §627.736(5)(b). More than 30 days after its treatment of Ms. Mayea had ended, appellant discovered that Windsor, not Progressive, was actually Ms. Mayea’s PIP insurer. Accordingly, appellant then submitted the bills to appellee Windsor. Windsor denied payment because the bills were submitted later than 30 days after treatment had ended. WR filed suit and the trial court granted Windsor’s motion to dismiss with prejudice. In its order of dismissal, the trial court found that it was bound by State Farm Mutual Automobile Insurance Co. v. Warren, 805 So. 2d 1074 (Fla. 5th DCA 2002). The trial court also found that although Fla. Stat. §627.736(5)(b) was amended in 2001, to allow providers who were given the incorrect information to resubmit the bills to the correct carrier, this amendment was not retroactive. Therefore, the trial court concluded that WR was precluded from recovering payment from Windsor for the services it rendered to Ms. Mayea.1
On appeal, WR asks the Circuit Appellate Court to vacate the trial court’s order dismissing the complaint with prejudice, and to remand this case for further proceedings. WR also asks the Court for an award of attorneys’ fees pursuant to Fla. Stats. §§627.428 and 59.46.
The applicable law governing the parties at the time appellant rendered treatment to Ms. Mayea was §627.736(5)(b), Fla. Stat. (1998). That statute reads, in pertinent part, as follows:
With respect to any treatment or service, other than medical services billed by a hospital for services rendered at the hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 30 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to 60 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. (Emphasis added).
Thus, pursuant to the plain language of the statute as it read at the time WR rendered the services to Mayea, an insurer would not be responsible for late billings. That version of the statute does not contain an exception when providers bill the wrong insurance company. See Pinnacle Medical Inc., ISO Data Diagnostics v. Metropolitan Property and Casualty Insurance Co., 9 Fla. L. Weekly Supp. 60a (Fla. 15th Cir. Ct. 2001) (where medical provider erroneously submitted bill for service to insurance company that was not proper insurer for claim and subsequently submitted bill to proper insurer more than thirty days after services were rendered, claim was untimely and insurer is not required to pay bill); Hoo-Martinez v. State Farm Fire and Casualty Co., 6 Fla. L. Weekly Supp. 779a (Fla. 11th Cir. Ct. 1999) (medical bills, which were not sent to insurer within 30 days of date services were rendered, were untimely pursuant to statute and insurer is relieved of obligation to pay bills.)
Laws 2001, c. 2001-271, §§ 6, effective June 19, 2001, revised the statute to provide as follows:
627.736(c) 1. With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.
2. If, however, the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with a statement of the charges. The insurer is not required to pay for such charges unless the provider includes with the statement documentary evidence that was provided by the insured during the 35-day period demonstrating that the provider reasonably relied on erroneous information from the insured and either:
a. A denial letter from the incorrect insurer; or
b. Proof of mailing, which may include an affidavit under penalty of perjury, reflecting timely mailing to the incorrect address or insurer.
Thus, had appellant rendered services to Ms. Mayea after June 19, 2001, it would have been able to receive reimbursement. Accordingly, appellant argues that that the version of the statute in effect at the time it rendered services to Ms. Mayea constitutes a denial of access to courts. Appellant argues that this is so because the statute effectively precludes medical providers who rendered services to an insured between October 1, 1998 and June 19, 2001, from receiving reimbursement when they failed to submit a claim within 30 days of the last treatment date.
In Warren, supra, relied upon by the trial court in its order, the Fifth District held that the condition precedent to the filing of a claim, which is imposed by §627.736(5)(b), Fla. Stat. (1998), does not constitute a denial of access to the courts. This panel notes that Warren is factually distinguishable since, in Warren, the insured did not misinform the medical provider as to the identity of her insurance company. In contrast, in the case at bar, Ms. Mayea did. Therefore, it seems inequitable to penalize appellant for its failure to timely submit claims when that failure was the result of the insured’s error. It would be equitable to allow appellant to have 30 days from the date it was provided with the correct information, akin to the reasoning behind statutes of limitation. However, in Warren, the Fifth District rejected the argument that placing a statutory time limit upon the submission of bills by medical providers — while failing to place such a limit on hospital emergency departments and ambulance providers — violated equal protection. In Warren, the court held that §627.736(5)(b) — which provides that the insurer is not required to pay for charges for treatment or services rendered more than 30 days before the postmark date of the statement — was constitutional. The Fifth District held that the statute was rationally related to the legitimate state purpose of reducing “unnecessary medical costs which in turn lowers the costs upon which insurers base PIP premiums and ultimately benefits consumers.” Id. at 1078. This panel notes that Warren has been appealed to the Florida Supreme Court2; nevertheless, at the present, it is good law. Furthermore, in the absence of the Third District having ruled on this issue, we are bound by Warren. See State v. Hayes, 333 So. 2d 51 (Fla. 4th DCA 1976) . Accordingly, we hereby affirm the trial court’s order dismissing the complaint with prejudice, and deny Appellant’s motion for appellate attorney’s fees. (ROTHENBERG, J., concurs.)
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1Ms. Mayea is not adversely affected by her providers being unable to collect from UAIC. The same provision in the statute which specifies that the Insurer is not required to pay late filed claims also states: “The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph.”; see §627.736(5)(b), Fla. Stat. (1998).
2Review was granted by Warren v. State Farm Mutual Automobile Insurance, 826 So. 2d 994 (Fla. 2002).
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(PLATZER, J., dissents.) I respectfully dissent. Firstly, State Farm v. Warren should be factually distinguished. This case involves an insured giving incorrect insurance information to the provider. Once provided with correct information, the appropriate insurer was billed within 30 days. The provider in Warren was given correct information, but failed to bill the insurer within the statutory time. Based upon these factual distinctions, I do not believe Warren to be controlling.
Secondly, I would find the statute unconstitutional under this set of facts . The majority is correct that the Warren court found that the statute, which required a condition precedent to the filing of a claim, is not an unconstitutional denial of a provider’s right to access to the courts. However, the factual distinctions previously discussed, do not result in the same analysis. The provider’s right to access to the courts is clearly violated where an action can not be brought against the party so obviously responsible for the delay in providing bills to the insurer, i.e. the insured.
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