13 Fla. L. Weekly Supp. 637a
Insurance — Personal injury protection — Claim form — HCFA — Defects — Taxpayer identification number — Waiver — Mere payment of claim does not amount to waiver of any defects in claim — Where insurer filed affidavits averring that it was not aware of incorrect taxpayer identification number at time it partially paid claim and would not have paid claim if it had known, and medical provider filed no opposing affidavits or sworn evidence, insurer has established for summary judgment purposes that it did not waive defect in claim — Due to defect in HCFA, insurer was not provided with notice of covered loss and summary judgment is granted in favor of insurer
DR. KEVIN L. PAYTON, (a/a/o Larry Boyd), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-15453 COCE 53. March 17, 2006. Robert W. Lee, Judge. Counsel: Domingo A. Gonzalez, Hialeah, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDEDMOTION FOR FINAL SUMMARY JUDGMENT; and FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on March 16, 2006 for hearing of Defendant’s Amended Motion for Final Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background: On August 12, 2004, the Honorable Sharon Zeller entered an Order denying Defendant’s Motion for Summary Judgment. In the Order, the Court held that although the Plaintiff violated the provisions of the Florida Statutes by submitting statements with incorrect taxpayer identification numbers, the Defendant had waived the defect by paying prior bills with the same incorrect identification number. Subsequently, the Defendant filed its Affidavit which it argued established that the Defendant did not intentionally relinquish a known right, the legal definition of waiver. After a hearing on June 24, 2005, on Defendant’s Motion for Reconsideration of Summary Judgment, this Court found that even if the Defendant’s position were meritorious, the Motion for Reconsideration should still be denied as premature. The Court noted that while the Defendant had tried to eliminate any disputed issue of material fact on the issue of waiver, the deposition of the party who could controvert movant’s affidavit filed on March 31, 2005 had not yet been taken. See Payne v. Cudjoe Gardens Property Owners Association, Inc., 837 So.2d 458, 461 (Fla. 3d DCA 2002).
Since then, almost nine additional months have passed, and Plaintiff has taken no further steps to take the desired deposition. At the hearing, the Plaintiff conceded that it had decided not to take the deposition, wanting “the jury to decide” this issue. Because the Defendant has taken no action to move forward with discovery, the outstanding deposition is no longer an impediment to the Court’s consideration of summary judgment in this case. See Estate of Herrera v. Berlo Industries, Inc., 840 So.2d 272, 273 (Fla. 3d DCA 2003); Periera v. Florida Power & Light Company, 680 So.2d 617, 618 (Fla. 4th DCA 1996) (dilatory discovery conduct not an impediment to summary judgment); Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988); Commercial Bank of Kendall v. Heiman, 322 So.2d 564, 564 (Fla. 3d DCA 1975) (failure to complete discovery bars summary judgment if failure is “through no fault” of non-moving party).
Conclusions of Law. The Court noted in its Order of June 27, 2005, that the “issue of waiver still has not been resolved.” The Court disagrees that the mere payment of a claim amounts to a waiver of any defects in the claim. First, such a determination, as noted, does not comport with the Florida definition of waiver, which requires an “intentional” relinquishment of a known right. Second, the policy of the PIP no-fault law encourages “virtually automatic” payment of claims, but allows an insurer to seek return of improperly paid claims after the fact. Here, the Defendant alleges that it did not intentionally overlook the incorrect taxpayer identification number. Rather, it asserts that it was not aware of the defect at the time it made a partial payment on the claim. The question for the Court is whether the affidavits and sworn evidence of record establish the Defendant’s position without a disputed material fact, and if so, whether it is entitled to final summary judgment.
The Court notes that under the version of the statute in effect when the bills were submitted in this case, “an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills unless the statements or bills comply with this paragraph.” Fla. Stat. §627.736(5)(d)(2000). In its Order of June 27, 2005, this Court ruled that by submitting a bill with an incorrect taxpayer identification number, the insurer has not been put on notice of a covered loss. This does not necessarily absolve the insurer from paying the bill. Rather it means that the payment is not overdue until compliance with the statute is met and the payment period thereafter runs. A similar result may not necessarily result under the current version of the statute which now ties the insurer’s obligation to “substantial” compliance with the billing requirements. See id. §627.736(5)(b)(1)(d) (2004).
As an attachment to its Amended Motion for Summary Judgment, the Defendant included the affidavits of Ann Caroscio, litigation specialist for Progressive, and Jean Labossiere, supervisor for Progressive. Both affidavits aver that the Defendant was not aware of the incorrect nature of the taxpayer identification number at the time it partially paid the claim, and had it known, it would not have paid the claim. The Plaintiff filed no affidavit or other sworn evidence to the contrary. The Court holds that this is therefore sufficient to establish for summary judgment purposes that the Defendant did not waive the issue of the incorrect taxpayer identification number.
A provider who provides incorrect information material to the “identity of the provider does not provide the insurer with notice of the loss or the amount thereof.” New Hampshire Indemnity Corp. v. Equinox Business Credit Corp., 10 Fla. L. Weekly Supp. 172 (9th Cir. Ct. 2002). Providing the taxpayer identification number of a third party potentially exposes the insurer to the possibility that it might be cutting the check to the wrong party. This can expose the insurer to double liability. See also Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637, 637 (13th Cir. Ct. 2005) (failure to provide physician’s license number does not put insurer on “notice of a covered loss”).
Having found that the HCFA was deficient as a matter of law, the Court need not address Defendant’s alternate grounds that the assignment of benefits was deficient for including four assignees in a single instrument, and that the HCFA was submitted by the wrong party. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Amended Motion for Final Summary Judgment is GRANTED. The Plaintiff shall take nothing in this action, and the Defendant shall go hence without day. The Court reserves jurisdiction to consider the issue of attorney’s fees and costs. [Editor’s note: See 13 Fla. L. Weekly Supp. 824a.]
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