12 Fla. L. Weekly Supp. 781a
Insurance — Personal injury protection — Claim form — License number — Insurer has met burden for summary judgment based on medical provider’s failure to satisfy condition precedent of submitting complete claim form where insurer submitted both incomplete claim form and affidavit of claims adjuster indicating HCFA form received from provider did not reflect provider’s professional license number — Unnotarized affidavit of provider’s billing clerk indicating that provider subsequently sent new HCFA form with license number on unspecified date did not create genuine issue of material fact — Billing clerk’s affidavit is defective for being unnotarized and not having been provided to insurer prior to hearing — Retroactive submission of complete HCFA form does not cure failure to satisfy condition precedent
TRANS IMAGING DIAGNOSTIC MEDICAL CENTER, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit, Miami-Dade County. Case No. 04-3101 SP 26 02. May 5, 2005. Bronwyn C. Miller, Judge. Counsel: Neil Gonzalez. 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 finds as follows:
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 November 24, 2003. Following the accident, Maykel Fontanella sought treatment. Plaintiff accepted an assignment of PIP benefits from Fontanella.
2. Plaintiff submitted its medical bill on a Health Care Finance Administration (hereinafter “HCFA”) form to defendant, U.S. SECURITY, reflecting a date of service of November 25, 2003.
3. The form received by U.S. SECURITY did not reflect a professional license number of the provider in the space provided for “Signature of Physician or Supplier, Including Degree or Credentials.”
4. U.S. SECURITY did not render payment and Plaintiff filed suit on May 4, 2004. On March 8, 2005, U.S. SECURITY filed a Motion for Summary Judgment based upon the failure of the provider to place the professional license number on the form. In support of the motion, U.S. SECURITY filed the affidavit of its claims adjuster, Shania Byrd, indicating that the HCFA form received from Plaintiff did not reflect the professional license number of the provider. U.S. SECURITY further provided a copy of the HCFA form, which indeed does not reflect the professional license number of the provider.
5. Plaintiff was sent notice of the hearing on the summary judgment motion on March 3, 2005; Plaintiff filed nothing in opposition to U.S. SECURITY’s motion. However, at the hearing on the matter, scheduled on May 5, 2005, Plaintiff produced a non-notarized affidavit of its billing clerk.
Conclusions of Law
Florida law allows the entry of summary judgment in those circumstances in which, “pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla.R.Civ.P. 1.510(c). 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).
In 2003, the Florida Legislature amended Section 627.736(5)(d) to include a professional license number requirement. In relevant part, the statute set forth the following: “All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” (emphasis added). Further, the statute expressly states that “[f]or 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 due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.” (emphasis added). “Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Insurance Company v. Rodriguez, 808 So.2d 82, 85 (Fla. 2002); Rollins v.Pizzarelli, 761 So.2d 294, 297 (Fla. 2000). “Statutes should not be interpreted in a manner that would deem the legislative action useless.” U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101, 1104 (Fla. 3d DCA 2000). “The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent.” Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1150 (Fla. 2000). The use of the term “shall” clearly conveys the mandatory requirement intended by the legislature in enacting the statute.
U.S. SECURITY has met its burden in the summary judgment motion through the submission of the affidavit of its claims adjuster and the incomplete HCFA form. Accordingly, the burden shifts to Plaintiff to present competent evidence demonstrating a genuine issue as to material fact exists. 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”).
At the hearing on May 5, 2005, Plaintiff produced, but did not file, a non-notarized affidavit of its billing clerk in opposition to U.S. SECURITY’s motion for summary judgment. A non-notarized affidavit is legally defective. Section 92.50 Florida Statutes specifies:
“The jurat or certificate of proof or acknowledgement shall be authenticated by the signature and official seal of such officer or person taking or administering same; however, when taken or administered before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person.”
Further, Plaintiff did not provide the affidavit to U.S. SECURITY prior to the hearing, in direct contravention to Fla.R.Civ.P. 1.510(c) (“The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of the hearing.”); Rodriguez v. Tri-Square Construction, Inc., 635 So.2d 125 (Fla. 3d DCA 1994) (Affidavits delivered one business day prior the summary judgment hearing were untimely).
However, even assuming that the non-filed affidavit complied with the requirements of Florida Statutes and Rules of Civil Procedure, the affidavit does not create a genuine issue of material fact. The affidavit indicated that Plaintiff “subsequently” sent a new HCFA form with provider information to U.S. SECURITY. No date or time for this remedial measure was set forth in the affidavit. Further, Plaintiff was unable to produce a fax confirmation, a certified mail receipt, or any other confirmation regarding this remedial measure. No corrected form has been filed. The argument and contentions of counsel for the non-moving party will not suffice as competent, admissible evidence. Seaboard Systems Railroad, Inc. v. Goforth, 545 So.2d 482 (Fla. 5th DCA) rev. denied 553 So.2d 1166 (Fla. 1989). These assertions, devoid of specificity, do not create a genuine issue of material fact.
Finally, Section 627.736(5)(d) operates as a condition precedent to filing suit. Thus, a retroactive submission of a complete HCFA form does not cure the procedural violation.
The Court finds that there is no genuine issue of material fact as to Plaintiff’s failure to comply with the requirements of Section 627.736(5)(d) Florida Statutes. Thus, Defendant’s Motion for Final Summary Judgment is hereby GRANTED. The Defendant shall go henceforth without day.
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