12 Fla. L. Weekly Supp. 403b
Insurance — Personal injury protection — Coverage — Denial — Explanation of benefits — Where medical provider had not provided documentation requested via EOB prior to filing suit, amount at issue had not become overdue, and suit was premature — Test results, including raw data, wave forms, and physician’s interpretation are within meaning of statutory discovery provision for records regarding history, condition, and treatment that provider was legally required to provide pursuant to EOB request — Insurer can request documentation or information from provider without also requesting sworn statement that treatment rendered was reasonable and necessary — Motion for continuance to allow time to perfect service of affidavit in opposition to insurer’s motion for summary judgment is denied and affidavit is stricken where affidavit faxed without cover sheet or exhibits does not comply with timeliness requirements or formal rule requirements — Summary judgment granted in favor of insurer
DREW MEDICAL, INC., as assignee of Belen Vazquez, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-3604. January 3, 2005. John R. Sloop, Judge. Counsel: George Milev, Adams, Blackwell & Diaco, P.A., Tampa. Amanda Gifford.
ORDER
THIS CAUSE having come before the Court on October 18, 2004 on Defendant’s Amended Motion for Final Summary Judgment and for Protective Order, and on Defendant’s Motion to Strike the Affidavit of Melanie Matos, and the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that
1. Defendant’s Motion for Final Summary Judgment is GRANTED.
2. Belen Vazquez was involved in a motor vehicle accident on 8/11/01.
3. Belen Vazquez was covered under a policy of automobile insurance with Progressive Express Insurance Company (Progressive) at the time of the accident.
4. Plaintiff, Drew Medical, performed x-rays diagnostic testing on Belen Vazquez on 8/16/01 and billed Progressive $309 for the services.
5. Progressive received Plaintiff’s Health Insurance Claim Form (HCFA) on 9/17/01.
6. Upon receipt and review of the HCFA, Progressive sent an Explanation of Benefits (EOB) to Plaintiff on 9/27/01 requesting “copies of all test results, including raw data, wave forms and physicians interpretation”.
7. Progressive contends that it made the above request pursuant to §627.736(6)(b), Fla. Stat. (2001), although the Explanation of Benefits does not specifically cite §627.736(6)(b).
8. Progressive made a timely written request via the EOB within thirty (30) days after receiving Plaintiff’s HCFA.
9. Progressive contends that Plaintiff did not respond to Progressive’s request made via the EOB and instead filed a PIP lawsuit against Progressive on 7/28/03 alleging breach of automobile insurance contract.
10. Progressive also contends that Plaintiff had not provided Progressive with any of the requested documentation at the time the lawsuit was filed, although Plaintiff presented affidavit testimony that it was Plaintiff’s business practice to submit copies of the X-ray reports with its billing to Progressive.
11. Progressive filed its Amended Motion for Final Summary Judgment arguing amongst other things that Plaintiff had no cause of action in the above lawsuit as amount at issue was not overdue pursuant to §627.736(4)&(6)(b), Fla. Stat.
12. §627.736(6)(b), Fla. Stat. (2001) in its pertinent part states “(e)very physician, hospital, clinic, or other medical institution. . .shall, if requested to do so by the insurer against whom the claim is made, furnish written forthwith report of the history, condition, treatment, dates, and costs of such treatment. . . together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injuries sustained. . . and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment” (emphasis added).
13. Plaintiff argued that since Progressive’s request did not seek the documentation enumerated in §627.736(6)(b) Fla. Stat. (2001), Plaintiff was under no legal obligation to provide the documentation requested by Defendant in its EOB.
14. The court in Kaminester v. State Farm Mutual Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000), ruled that a request for the provider’s lease was well within the meaning of the statutory discovery provision “costs of such treatment”.
15. Thus this Court finds under the circumstances of the current case that “test results, including raw data, wave forms and physicians interpretation” are within the meaning of the statutory discovery provision “records regarding such history, condition, treatment” contained in §627.736(6)(b).
16. Plaintiff further argued that Progressive’s request for documentation/information under §627.736(6)(b), Fla. Stat. must have been accompanied by a request for a sworn statement that the treatment or services rendered were reasonable and necessary as set forth in §627.736(6)(b) and that Progressive did not offer to compensate Plaintiff for the documents/information purportedly requested pursuant to §627.736(6)(b).
17. This Court finds that under the plain language of the Statute, an insurer can request documentation or information from medical provider(s) pursuant to §627.736(6)(b) Fla. Stat. without also requesting a sworn statement that the treatment or services rendered were reasonable and necessary.
18. §627.736(6)(b), Fla. Stat. (2001) in its pertinent part continues “(i)f an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount . . . shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later” (emphasis added).
19. This Court finds that as Plaintiff had not provided any of the documentation requested via the EOB by Progressive prior to filing of the lawsuit, the amount at issue had not become overdue pursuant to §627.736(4) & (6)(b), Fla. Stat. and thus Plaintiff’s lawsuit was premature.
20. Progressive noticed the hearing on its Amended Motion for Final Summary Judgment by a certificate of service dated May 19, 2004.
21. The hearing on Progressive’s Amended Motion for Final Summary Judgment was held on Monday, October 18, 2004.
22. Plaintiff filed an Affidavit of Andrea Shelton on 06/25/04 in opposition to Progressive’s Motion for Summary Judgment and in addition faxed a copy of Notice of Filing and Affidavit of Melanie Matos in Opposition to Defendant’s Motion for Summary Judgment to counsel for Progressive on Thursday afternoon, October 14, 2004. Progressive contends that the two composite exhibits claimed to be attached to the Affidavit were missing from the fax from Plaintiff transmitted on 10/14/04, although Progressive concedes it received the affidavit with exhibits by fax on Friday, October 15, 2004. In addition, this Court finds that the facsimile transmission of the Notice of Filing and the Affidavit of Melanie Matos did not have “a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted” (emphasis added) as required by Rule 1.080(b)(5) Fla.R.C.Pr.
23. At the Summary Judgment hearing, Plaintiff’s requested that the Court allow the Affidavit of Melanie Matos into evidence and argued that there was no prejudice to Progressive based on the merits of the case and facts contained in the Affidavit, however this Court refused Plaintiff’s request for the reasons stated below.
24. This Court finds that the Affidavit of Andrea Shelton filed on 06/25/04 does not present a material issue of fact and the Affidavit of Melanie Matos faxed to counsel for Progressive on Thursday, October 14, 2004 purportedly without exhibits and refaxed with exhibits on Friday, October 15, 2004, did not comply with the timeliness requirements of Rule 1.510(c), Fla.R.C.Pr. and/or the formal requirements of Rules 1.510(e) and 1.080(b)(5) Fl.R.C.Pr.
25. Thus, Plaintiff’s Ore Tenus Motion for a Continuance to allow time to perfect service of the Affidavit of Melanie Matos is hereby DENIED and Defendant’s Motion to Strike the Affidavit of Melanie Matos is hereby GRANTED.
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