13 Fla. L. Weekly Supp. 366a
Insurance — Personal injury protection — Misrepresentation — Insurer met its burden of proving non-existence of genuine issue of fact as to medical provider’s misrepresentation of services by introducing insured’s examination under oath in which insured denied having done or been taught exercises, affidavits of litigation specialist, and HCFA forms establishing that services were not rendered — Provider did not file anything in opposition to raise genuine issue of material fact — Misrepresentation voids entire claim — Further, insurer is not responsible for payment of bills that were untimely submitted — Insurer’s motion for final summary judgment grantedREVERSED in part at 14 Fla. L. Weekly Supp. 1089a
DYNAMIC MEDICAL SERVICES a/a/o MANUEL ROSSITCH, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 03-715 CC 26 (04). January 26, 2006. Nuria Saenz De La Torre, Judge. Counsel: Bernard H. Butts, Jr., Hialeah. Lynne M. French, Miami.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 13, 2005 on the Defendant’s Motion for Final Summary Judgment. The Court having heard argument of counsel, reviewed the court file and considered applicable law, it is therefore,
ORDERED AND ADJUDGED as follows:
I. BACKGROUND
1. This is an action for damages for alleged overdue no fault benefits filed pursuant to Florida Statutes, Sections 627.730-627.7405.
2. On January 30, 2003, Plaintiff, Dynamic Medical Services (“Dynamic”) filed a Complaint for No-Fault Benefits for alleged treatment it rendered to Manuel Rossitch as a result of an accident alleged to have taken place on July 29, 2000.
3. The dates of the alleged treatment were between August 4, 2000 and September 21, 2000.
4. Mr. Manuel Rossitch was insured with Progressive Express Insurance Company (“Progressive”) at the time of treatment.
5. The Defendant has filed a Motion for Final Summary Judgment alleging that Dynamic is not entitled to receive payment for the alleged treatment as it submitted false and or misleading HCFA forms and also that some of the bills were untimely submitted.
6. More specifically, Progressive argues that Mr. Rossitch never received neuromuscular reeducation or therapeutic exercises although these services were billed.
7. More specifically, Progressive argues that the bills for dates of service August 4, 2002 through August 7, 2000 in the amount of $1,067.00 were not postmarked until October 18, 2000 and the bills for dates of service August 8, 2000 though August 22, 2000 were not postmarked until October 18, 2000.
8. More specifically, Progressive argues that although Dynamic sent a Letter of Intent to Treat Mr. Rossitch within twenty (21) days after its first examination, the above mentioned bills were submitted in a statement that exceed the sixty (60) days allowed by Florida Statutes, Section 627.736(5)(b) (2000).
9. In support of its Motion, Progressive filed, among other things, the Examination under Oath of the Insured, Mr. Rossitch, where he is questioned on several occasions regarding the treatment he received at Dynamic. More specifically, Mr. Rossitch was asked if he ever did any exercises while at Dynamic or if he was ever taught how to do exercises. Mr. Rossitch answered no to both questions.
10. In support of its Motion, Progressive also filed the affidavit of their Litigation Specialist, Michele Buck, and the HFCA forms to establish their claim that services were billed for but not rendered and that the bills were untimely submitted.
11. The Plaintiff did not file anything in opposition.
II. CONCLUSIONS OF LAW
12. It is established law in Florida 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).
13. Once the moving party has met its burden, the burden shifts to the nonmoving party to present competent evidence demonstrating the existence of a genuine issue of material fact. Id. at 43.
14. Progressive, as the moving party has met its burden with the introduction of Mr. Rossitch’s Examination Under Oath, the affidavit of Michele Buck and the HCFA forms submitted by Dynamic.
15. Dynamic failed to meet its burden as it did not file anything in opposition to raise a genuine issue of material fact.
16.In Radiology & Neurology Consultants, Inc. v. Progressive Consumers Insurance Company, 12 Fla. L. Weekly Supp. 754b (Broward Circuit Court, February 9, 2005), the Court held that:
A health care provider who presents, or causes to be presented, a HCFA containing false, misleading, incomplete, or deceptive information to an insurance company, knowing that the information is false, misleading, incomplete or patently deceptive, or when the healthcare provider/supplier acts in deliberate ignorance of the truth, falsity or completeness of the information, or acts in a reckless disregard of the truth, falsity or completeness of the information contained in the HCFA, may not recover any personal injury protection benefits pursuant to Florida Statutes Section 627.736.
17. The Radiology Court further held that “[a]ny intentional material misrepresentation on any portion of the claim, as a matter of public policy voids the entire claim.” Id.
18. Florida Statutes, Section 627.736(5)(b) (2000) states in pertinent part:
“ . . . the insurer is not required to pay charges for treatment of services rendered more than 30 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 60 days before the postmark date of the statement.”
19. As the bills for dates of treatment August 4, 2000 through August 22, 2000 were untimely submitted, Progressive is not responsible for payment of these.
20. As Dynamic has failed to present competent evidence raising a genuine issue of material fact or adverse case law, Progressive is not responsible for payment of all of the bills submitted by Dynamic for Mr. Rossitch.
21. Progressive’s Motion for Final Summary Judgment is Granted.
ORDERED AND ADJUDGED that Dynamic take nothing from this action and Progressive shall go hence without day.
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