13 Fla. L. Weekly Supp. 908c

Insurance — Personal injury protection — Coverage — Medical expenses — Overdue bills — Explanation of benefits — Tolling of period to pay or reject claim — Where insurer made timely request for x-ray reports to support claims for x-rays and received no response from medical provider, claims were not overdue at time of filing complaint, and suit is premature

DR. MITCHELL G. JOMSKY (a/a/o Amber Dubois (2)), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 05-14787 COCE (54). June 26, 2006. Lisa Trachman, Judge. Counsel: Laura M. Watson, for Plaintiff. Reuven T. Herssein, Adams & Diaco, P.A., Tampa, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO F.S.§627.736(6)(b) (2003)

THIS MATTER having come on to be heard on June 13, 2006, on Progressive Auto Pro Insurance Company’s (“PROGRESSIVE”) Motion For Partial Summary Judgment predicated upon the request for additional medical documentation made by PROGRESSIVE in its explanation of benefits pursuant to F.S. § 627.736(6)(b) (2003).

FINDING OF FACTS:

1. Plaintiff sued PROGRESSIVE for breach of contract under F.S.§ 627.736 (2003), — the Personal Injury Protection Statute (“PIP”) alleging that PROGRESSIVE, wrongfully reduced medical bills and refused to pay for two (2) x-ray scans allegedly performed on December 5, 2003.

2. On January 8, 2004, PROGRESSIVE received bills for medical services performed for the insured. Part of the bills received contained charges for two (2) x-ray scans (CPT codes 72040 and 72100) in the amount of $110.00 each.

3. On February 4, 2004, PROGRESSIVE sent the Plaintiff an explanation of benefits that indicated that the x-ray charges were being denied because the Plaintiff failed to include the x-ray reports with the bills.

4. On or about July 29, 2004 the Plaintiff filed this law suit, and never responded or supplied the requested x-ray reports.

5. On March 4, 2005, in its response to the request for admissions sent by PROGRESSIVE, Plaintiff admitted that they never supplied the requested x-ray report.

RULING OF LAW:

Florida Statute Section §627.736(6)(b) states that “If an insurer makes a written request for documentation or other information within 30 days after having received notice of the amount of a covered loss. . .the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay within 10 days after the insurer’s receipt of the requested documentation or information. . .” [Emphasis Added]

Pursuant to F. S. §627.736 (2003), PROGRESSIVE was entitled to request additional medical reports in order to evaluate their obligation to pay reasonable expenses for medically necessary care.

Where the insurer made a timely request for additional documentation pursuant to §627.736(6)(b), thus tolling the time for payment of the claims, and having received no responses from the plaintiff, the claims that were the subject of the suit were not “overdue” at the time of the filing of the complaint and are not collectible as the law suit is premature. See Drew Medical Inc, (a/a/o Belen Vazquez) vs. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 403b (Fla. 18th Judicial Circuit January 2005); Wellington Chiropractic Center of Palm Beach Inc., vs. Nationwide Mutual Insurance Company 11 Fla. L. Weekly Supp. 929b (Fla. 15th Judicial Circuit August 2004), citing Kaminester v. State Farm Mutual Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000), for the proposition that under Fla. Stat. Sec. §627.736(4) & (6)(b) an insurer can request additional information and documentation on details on what services had been provided; Physicians Extended Services (a/a/o Christina L. Nelson) vs. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 649b (Fla. 9th Judicial Circuit April 2004); Doctors Pain Management (a/a/o Dalon Finley) vs. Progressive Auto Pro Insurance Company, 11 Fla. L. Weekly Supp. 1071b (Fla. 9th Judicial Circuit August 2004) .

WHEREFORE it isORDERED AND ADJUDGED

1. The Defendant’s Motion For Partial Summary Judgment is GRANTED — as it pertains to the x-ray scans allegedly performed on 12/05/2003 (CPT codes 72040 and 72100) billed at $110.00 each. This Court is not ruling on any other medical bills at issue in this suit.