13 Fla. L. Weekly Supp. 610b
Insurance — Personal injury protection — Claims — HCFA form — Defects — Waiver — Medical provider has failed to prove that insurer waived defect in HCFA form which did not have professional license number in Box 31 by making partial payment of claim — Waiver cannot be inferred from deposition of litigation adjuster which did not indicate that insurer knew of defect in form at time it made partial payment, and statute mandating inclusion of license number provides that deficiency may be asserted even after payment — Insurer has not been provided with notice of covered loss
FINLAY DIAGNOSTIC CENTER, INC., a/a/o MANUEL ALCOSER, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 04-9506 SP 26 (04). January 31, 2006. Nuria Saenz De La Torre, Judge. Counsel: Maria E. Corredor, for Plaintiff. Maury L. Udell, Beighley & Myrick, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on January 31, 2006 on the Defendant’s Motion for Final Summary Judgment. The Court having heard argument of counsel, reviewed the court file and considered applicable law, and it is therefore,
ORDERED AND ADJUDGED as follows:
I. BACKGROUND
1. This is an action for damages for overdue no-fault benefits filed pursuant to Florida Statutes, Sections 627.730-627.7405.
2. On or about June 25, 2004, Manuel Alcoser, the Insured, was involved in an automobile accident and suffered personal injuries.
3. As a result, Manuel Alcoser, sought treatment at Finlay Diagnostic Center, Inc., for those personal injuries on July 15, 2004.
4. The Plaintiff submitted a HCFA form seeking payment; however, the HCFA form did not include the professional license number of the provider in Box 31.
5. The Defendant made a partial payment on the bill in question.
6. On December 8, 2004, the Plaintiff filed this action seeking additional PIP benefits.
II. CONCLUSIONS OF LAW
A. SUMMARY JUDGMENT STANDARD
7. 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).
8. Once the moving party has met its burden, the burden shifts to the non-moving party to present competent evidence demonstrating the existence of a genuine issue of material fact. Id. at 43.
B. BOX 31
9. The Defendant filed a Motion for Final Summary Judgment on the grounds that it has not been placed on notice of a covered loss or medical bills due as the HCFA form submitted by the Plaintiff does not comply with requirements of Florida Statutes, Section 627.736(5)(d) (2003).
10. In support of its Motion, the Defendant filed the HCFA form in question.
11. The Plaintiff did not dispute that the HCFA form filed was the one previously submitted for payment.
12. It is undisputed that the HCFA form does not have the professional license number of the provider in Box 31.
13. The Defendant, as the moving party, has met their burden to demonstrate the nonexistence of a genuine issue of material fact.
14. The burden has shifted to the Plaintiff to demonstrate by competent evidence the existence of a genuine issue of material fact.
15. In opposition, the Plaintiff filed the affidavit of Eddian Rodriguez, the office manager for the Plaintiff, attesting to the payment made and the failure of the Defendant to have previously asserted the deficiency of the HCFA form.
16. In opposition, the Plaintiff also filed the transcript of the deposition of Steven Tabor, the litigation specialist for the Defendant, attesting to the receipt of the licenses, the fact that the Defendant paid as a service to the Insured and that there is a problem with the HCFA form that might not have been realized before the instant litigation was filed.
17. The Plaintiff argues that based on the partial payment made on this case and the litigation adjuster’s deposition, the Defendant has waived the right to assert any deficiency with the HCFA form during the litigation, more specifically, the absence of the professional license number of the provider in Box 31.
18. Waiver is defined as the “voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Financial Services, Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005).
19. The Plaintiff submitted, in support of their position, the case of Vitra-Spray of Florida, Inc.v. Gumenick, 144 So. 2d 533 (3rd DCA 1962) and the case of Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991), both dealing with partial payments and the concept of waiver.
20. Although this Court does recognize the concept of waiver and its applicability in any number of ways, this Court cannot ignore the plain language of the PIP Statute which is what controls the parties’ dealings in this case.
21. Florida Statutes, Section 627.736(5)(d) was amended in 2003 to require that a provider place its professional license number on the HCFA form. It specifically states:
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.”
22. Florida Statutes, Section 627.736(5)(d) (2003) further states:
For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of a 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.
23. Florida Statutes, Section 627.736(4)(b) (2003) states:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
24. This Court is aware of the case of Miami Medical Group v. Progressive Southeastern Insurance Company, 12 Fla. L. Weekly Supp. 115 (11th Jud. Cir. App. November 30, 2004), where the Eleventh Judicial Circuit, sitting in its appellate capacity, found that it was error to grant summary judgment for the insurer simply because the provider had failed to sign Box 31 of the HCFA form.
25. The Court is also aware of the case of The Aries Insurance Company v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637 (13th Jud. Cir. App. April 25, 2005), where the Court held that “[w]hile a typewritten name is not fatal to the provider’s original claim, the fact that credentials were not submitted in box 31, or in any other form, leads us to conclude that the provider has not provided notice of a covered loss in accordance with the statute.”
26. The cases provided by the Plaintiff pre-date the 2003 amendments to the PIP Statute and/or deal with the absence of signature of the provider, as opposed to, the absence of the professional license number of the provider.
27. The Plaintiff has failed to demonstrate by competent evidence that there exists a genuine issue of material fact with regards to the completeness of the HCFA form.
28. Further, the Plaintiff has failed to demonstrate that the Defendant knowingly waived its right to assert that the HCFA forms submitted did not comply with Florida Statutes, Section 627.736(5)(d) (2003).
29. The deposition of the litigation adjuster does not demonstrate that the Defendant knew of the deficiency at the time it made payment and therefore, it cannot be inferred that they were knowingly waiving such a deficiency. In actuality, the deposition of the litigation adjuster demonstrates that the Defendant is claiming that there is a problem with the HCFA form.
30. Legislative intent 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).
31. 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 Company, 767 So. 2d 1146, 1150 (Fla. 2000).
32. In light of the use of the word “shall” in the Statute, with regards to the requirement that the professional license number be included in Box 31 of the HCFA form and the specific language that such deficiency may be asserted, even after payment, the Court cannot find that the Defendant waived such deficiency.
33. The Defendant, therefore, as a matter of law, has not been placed on notice of a covered loss pursuant to Florida Statutes, Section 627.736(5)(d) (2003).
34. The Defendant, Progressive American Insurance Company, shall go forth without day.
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is Granted.
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