12 Fla. L. Weekly Supp. 778b
Insurance — Personal injury protection — Assignee’s action against insurer — Presuit requirements — Notice of loss — Disclosure and acknowledgment form — Where it was established that insurer did not receive disclosure and acknowledgment form before assignee filed suit, and form which was forwarded to insurer nearly a year after suit was filed purported to be executed on date two months prior to the date the form was available for distribution by the Department of Insurance, insurer is entitled to summary judgment
ASCLEPIUS MEDICAL INC., A/A/O JOEL LOPEZ RIVERO, Plaintiff, vs. U.S. SECURITY INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-003596-SP 26 (02). May 27, 2005. Bronwyn C. Miller, Judge. Counsel: Maria Corredor. Alberto Valdes, U.S. Security Insurance Company, Inc., Miami.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Defendant’s Motion for Final Summary Judgment and the court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby GRANTS Defendant’s motion on the following grounds:
Background:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on September 25, 2003. Following the accident, Joel Lopez Rivero sought treatment from Plaintiff, ASCLEPIUS MEDICAL INC. Plaintiff accepted an assignment of PIP benefits from Rivero in exchange for providing medical services. Defendant does not dispute Plaintiff’s standing.
2. There is no dispute between the parties that at all times material to this action, Rivero was covered by a policy of automobile insurance issued by Defendant, U.S. SECURITY.
3. Plaintiff submitted invoices to U.S. SECURITY for medical services rendered October 14, 2003 through January 19, 2004.
4. Plaintiff failed to submit a disclosure and acknowledgment form to U.S. SECURITY. However, after U.S. SECURITY failed to pay the bills, Plaintiff filed suit on May 19, 2004.
5. On May 5, 2005, nearly a year subsequent to the initiation of litigation, Plaintiff’s counsel forwarded U.S. SECURITY a letter stating in relevant part, “[p]er your request, enclosed please find the original disclosure and acknowledgment form relating to the above-captioned patient.” (emphasis added).
6. Neither the original nor a copy of the disclosure and acknowledgment form has been filed with this Court. However, the parties indicated in open court that the form submitted reflected a signature date of October, 2003, despite the fact that the form promulgated by the Department of Financial Services was not available until December 2003.
7. Defendant moves for summary judgment on whether Plaintiff complied with the pre-suit requirements relating to the provision of a “disclosure and acknowledgment form” pursuant to Section 627.736(5)(e) Fla.Stat. (2003).
8. In support of Defendant’s motion, Defendant submitted the affidavit of counsel, Alberto Valdes, along with the letter received by counsel on May 5, 2005, indicating an enclosure of the original disclosure and acknowledgment form. Defendant further submitted the affidavit of Yohanys Lopez, claims adjuster for U.S. SECURITY, stating that no disclosure and acknowledgment form was ever received by U.S. SECURITY and that several requests were made by U.S. SECURITY to Plaintiff to provide said form. Defendant further attached correspondence between Defendant and Plaintiff, none of which reflected the provision of the requisite disclosure and acknowledgment form and letters confirming that U.S. SECURITY had informed Plaintiff its claims were being rejected for failure to provide said form.
Conclusions of Law
Summary Judgment Standard
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Plaintiff has met this burden as through the submission of Ms. Lopez’s affidavit and attached correspondence, as well as through the letter received from Plaintiff’s counsel. Accordingly, the burden shifts to U.S. SECURITY to present competent evidence demonstrating a genuine issue of material fact. See, Holl, 191 So. 2d at 43 (“The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”).
Disclosure and Acknowledgment Form
In order to be entitled to payment of PIP benefits, a party seeking said benefits must establish that an insurer was provided with written notice of a covered loss. Specifically, Florida Statute 627.736(4)(b) states in relevant part: “[p]ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” Section 627.736(4)(b) Fla. Stat. (2003). In 2003, the Florida Legislature chose to implement a provision in the PIP Statute requiring the provider of medical services to furnish a disclosure and acknowledgment form to the insurer following treatment. Clearly, this provision was enacted to prevent fraud. Senate Staff Analysis and Economic Impact Statement, dated March 26, 2001, Senate Bill 1092 (“According to the Division of Insurance Fraud, the National Coalition Against Insurance Fraud estimated fraud in Florida’s automobile insurance line to be $1.1 billion in 1997, the most recent year for which information was available. During the past 5 years, a total of 5,576 personal injury protection-related referrals involving suspected or actual fraud were reviewed by the [Division of Insurance Fraud] and 1,218 criminal investigations resulted from the review of referrals. The division made 643 arrests for personal injury protection-related fraud cases, and 416 convictions were obtained based on those arrests.”). As enacted, Section 627.736(5)(e) Fla.Stat. (2003) provides:
At the initial treatment of service provided, each physician or licensed professional, clinic or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the service set forth therein was actually rendered.
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered.
c. The insured, or his or her guardian, was not solicited by any other person to seek any services from the medical provider.
d. That the physician, or licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian.
e. If the insured notifies the insurer in writing of a billing error, the insurer may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.
Section 627.736(5)(e) Fla.Stat. (2003).
In the instant case, U.S. SECURITY has established non-receipt of the disclosure and acknowledgment form prior to Plaintiff filing suit. In fact, it was not until nearly one year after suit was filed that Plaintiff forwarded to U.S. SECURITY anything purporting to be a disclosure and acknowledgment form. Thus, U.S. SECURITY was never provided with written notice of a covered loss prior to the filing of suit.
It should further be noted that Section 627.736(5)(e)(7) specifies:
The Financial Services Commission shall adopt, by rule, a standard disclosure and acknowledgment form that shall be used to fulfill the requirements of this paragraph, effective 90 days after such form is adopted and becomes fnal. The commission shall adopt a proposed rule by October 1, 2003. Until the rule is final, the provider may use a form of its own which otherwise complies with the requirements of this paragraph. Section 627.736(5)(e)(7) Fla.Stat. (2003).
The disclosure and acknowledgment form that Plaintiff’s Counsel may or may not have provided to U.S. SECURITY in May, 2004 purported to have been executed in October, 2003 on a Department of Insurance form; however, that form was date stamped on the bottom as available for distribution by the Department of Insurance two months after the form was purported to be executed. Thus, it is inconceivable that the form was signed on the date upon which it purported to be signed. This is the very fraud that the Legislature intended to prevent enacting the 2003 amendments to the PIP statute. Dismissal is an available remedy for knowingly submitting forged or altered documents with the intent to deceive the court. Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 372 (Fla. 4th DCA 2003).
Defendant’s Motion for Summary Judgment as to whether there was proper pre-suit notice in accord with Florida Statutes is hereby GRANTED.
The Defendant shall go henceforth without stay.
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