13 Fla. L. Weekly Supp. 1092a
Insurance — Personal injury protection — Notice of loss — HCFA form — Where medical provider failed to include professional license number on HCFA forms, insurer was not provided with notice of loss
DEPT. OF RADIOLOGY EXAMINATIONS, INC. (a/a/o Carmen Avila), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division, Case No. 04-02926 SP 05 (01). August 14, 2006. Shelly J. Kravitz, Judge. Counsel: Sadie Naveo, for Plaintiff. Lynne French Davis, Adams & Diaco, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Honorable Court on July 13, 2006 upon Defendant’s Motion for Summary Judgment, and the Court having reviewed the file herein, having heard argument of counsel, and being otherwise duly advised in the premises finds as follows:
1. Plaintiff, Department of Radiology Examinations, Inc., filed this action for PIP benefits via an assignment of benefits from Carmen Avila against PROGRESSIVE for services allegedly performed on October 6, 2003.
2. Plaintiff submitted, and Defendant received two Health Care Finance Administration claims forms (hereinafter “HCFA”) for date of service October 6, 2003.
3. The HCFA forms did not include the professional license number of the provider in Box 31 or anywhere else on the HCFA.
4. Defendant made a partial payment on the bill.
5. Plaintiff filed a four count Complaint against Defendant on February 24, 2004.
6. Defendant filed a Motion for Summary Judgement addressing all four counts.
7. Plaintiff withdrew three of the counts prior to the hearing on Defendant’s Motion for Summary Judgment so only the remaining count for breach of contract for failure to pay P.I.P. benefits was argued at the hearing.
8. In support of its Motion for Summary Judgement, Defendant filed the HCFA forms in question.
9. Plaintiff did not file anything in opposition to Defendant’s Motion for Summary Judgment.
10. Defendant argued that Defendant was not placed on notice of covered loss due to Plaintiff’s failure to comply with Florida Statutes §627.736(5)(d) (2003).
11. Florida Statutes §627.736(5)(d) was amended in 2003 to require that the provider include its professional license number on the HCFA forms. The statute specifically provides:
All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. . . . 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. . .
12. Florida Statutes §627.736(5)(d) further provides:
For 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. . .
13. Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2002). 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).
14. The Florida Legislature’s use of the word “shall” in the amendment requiring the inclusion of the professional license number on the HCFA forms conveys that it is a mandatory requirement which cannot be waived.
15. It is undisputed that Plaintiff failed to include the professional license number on the HCFA forms in question.
16. Therefore, Plaintiff failed to comply with the requirements imposed by Florida Statutes §627.736(5)(d) (2003) and, in turn, failed to furnish Defendant with notice of a covered loss for purposes of Florida Statutes §627.736(4)(b).
17. This Court is aware of W.R. Medical Center, Inc. v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 926b (11th Jud. Cir. App. July 5, 2005) and Miami Medical Group v. Progressive Southeastern Insurance Co., 12 Fla. L. Weekly Supp 115b (11th Jud. Cir. App. November 30, 2004) in which the Eleventh Circuit found that it was error to grant summary judgment for the insurer based on an unidentifiable signature in Box 31 of the HCFA as there was no express requirement in Florida Statutes §627.736 (2001) that Box 31 be signed.
18. The Eleventh Circuit cases did not deal with the 2003 amendment to Florida Statutes §627.736 which expressly requires that the license number of the provider be included on the HCFA forms. Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
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