13 Fla. L. Weekly Supp. 421a

Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Trial court erred in granting summary judgment in favor of medical provider whose claim was denied on ground that benefits were exhausted in payment of another provider’s untimely claim — Although Section 627.736(5)(b) allows insurers to deny claims submitted more than 30 days from date of service, it does not prohibit an insurer from paying such bills

GEICO INDEMNITY INSURANCE COMPANY, Appellant, v. CORAL IMAGING SERVICE, INC., a/a/o Virgilio Reyes, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 04-482 AP and 04-606 AP (Consolidated). L.C. Case No. 02-7646 SP 26 (02). February 16, 2006. An appeal from the County Court for Miami-Dade County. Counsel: Frank A. Zacherl, for Appellant. Marlene S. Reiss, for Appellee.

(Before EMAS, WARD, and REYES, JJ.)

QUASHED. 31 Fla. L. Weekly D2478a

(WARD, J.) This appeal stems from a ruling below granting summary judgment to Appellees, Coral Imaging Services, Inc., (hereinafter “Coral”), who sued Appellant, Geico Indemnity Insurance Company, (hereinafter “Geico”), arguing that charges submitted by another provider, Professional Services, (hereinafter “Professional”), were not due and owing since that bill was submitted untimely. As such, the benefits for the Personal Injury Protection, (hereinafter “PIP”), policy in question were nearly exhausted prior to appellees’ submission of its bill.

Appellant asserted that it properly paid Professional’s claim because, 1. Although Fla. Stat. § 627.736(5)(b) (1999) allows an insurer to deny payment of bills submitted more than thirty days from the date of service, it does not prohibit an insurer from paying such bills; and 2. Before Coral submitted its charges, Geico received documentation reflecting that the insured patient had been discharged from treatment and therefore, Geico could not have anticipated future bills such as the one Coral submitted. Additionally, Geico’s brief questioned Coral’s standing as to this matter. Because this Court concludes Fla. Stat. § 627.736(5)(b) (1999) does not require an insurer to deny claims submitted untimely, we find lower court erred in granting summary judgment to Coral. Accordingly, this Court finds no need to address Geico’s standing argument in this opinion.STANDARD OF REVIEW

In order to be entitled to summary judgment, the moving party must establish that there are no genuine issues of material fact and that he or she is entitled to summary judgment as a matter of law. Moore v. Moore, 475 So. 2d 666 (Fla. 1984). A summary judgment should not be granted unless the facts are “so crystallized that nothing remains but questions of law.” Id.FLORIDA STATUTE APPLICABLE TO ANALYSIS

Section 627.736(5)(b) (1999) reads in pertinent part:

With respect to any treatment or service. . .the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than thirty days before the postmark date of the statement, except for the 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 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. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. . .(emphasis added).

DISCUSSION

Legislative intent is to be determined primarily from the language of the statute and . . .the plain meaning of the statutory language is the first consideration.” See Public Health Trust of Dade County v. Lopez, 531 So. 2d 946, 948-949 (Fla. 1988). Furthermore, “[l]egislative intent. . .is the polestar that guides a court’s inquiry under the Florida No-Fault Law. . .” See Warren v. State Farm Mutual Automobile Insurance Company, (Fla. 2005) (quoting United Auto Insurance Company v. Rodriquez, 808 So. 2d 82, 85 (Fla. 2001).

The Fifth District Court of Appeal, in its opinion for State Farm Mutual Automobile Insurance v. Warren, 805 So. 2d 1074 (Fla. 5th DCA 2002), provided a thorough analysis of legislative intent when Fla. Stat. § 627.736(5)(b) (1999) was passed. In that opinion, the 5th District Court of Appeals determined that the Florida Legislature recognized a PIP insurer should be entitled to deny payment for treatment it felt was not medically necessary, reasonable, or related to the corresponding motor vehicle accident. Id. at 1077 (citing House of Representatives Committee on Financial Services, Bill Research and Economic Statement dated Dec. 11, 1997). A refusal to pay a claim is oftentimes based on an independent medical examination (hereinafter “IME”) conducted by a physician selected by the insurer. Id. In an effort for the insurer to exercise its right to require an IME, it must be aware that treatment is being provided. Id. However, there is no statutory authorization for an insurer under a PIP policy requiring notice of treatment. Id. Without such notice, an insured could theoretically receive numerous treatments and could be fully recovered before the insurer becomes aware of the treatment. Id. In a scenario such as this, an insurer’s ability to determine whether services rendered were reasonable, related, or necessary could be greatly diminished. Id. (emphasis added). “Section 627.736(5)(b) seeks to remedy the absence of a notice requirement by requiring timely statements from medical providers so that a PIP insurer would be aware of the commencement of treatment and would be in a better position to assure that treatment is reasonable, related to a motor vehicle accident, or necessary.” Id.

However, if an insurer is able to determine whether medical bills submitted are reasonable, related to a motor vehicle accident, and necessary, even if the bill is submitted beyond the thirty-day timeframe stipulated, Fla. Stat. § 627.736(5)(b)’s permissive wording does not bar the carrier from making payment. The statute, in part, states “. . .the statement of charges must be furnished to the insurer by the provider. . .and the insurer is not required to pay, charges for treatment or services rendered more than thirty days before the postmark date of the statement.” The insurer is therefore, allowed to determine whether payment to a claim is justified, despite the fact that it may have been submitted untimely.

Although the thirty-day filing constraint of § 627.736(5)(b) (1999) was meant to provide insurers with the ability to assess medical bills received, the Florida Legislature was cognizant of the fact that not all charges needed to adhere to this requirement. As such, a distinction was included regarding hospital emergency room charges. That portion of the statute reads in pertinent part:

For emergency services and care as defined in s. 395.002 rendered in a hospital emergency department or for transport and treatment rendered in a hospital emergency department for transport and treatment rendered by an ambulance provider licensed pursuant to Part III of Chapter 401, the provider is not required to furnish the statement of charges within the time periods established by this paragraph;

Since services provided by a hospital emergency room or ambulance provider usually occur only once and immediately follows an accident, the Legislature recognized that determining whether these charges are medically necessary and related to the accident is usually a “straightforward process”. See State Farm, 805 So. 2d at 1078. This distinction further evidences that the Florida Legislature enacted the filing requirements merely as an aid for insurers to better review claims. Thus, this Court concludes the thirty-day submission protocol was not intended to be a rigid, arbitrary requirement serving no valid purpose but to impose an undue hardship to a provider who fails to adhere to it.

In the case at bar, neither side disputes whether Professional’s charges were reasonable, necessary, or related to the accident. Even though the bills were submitted beyond the statutory thirty-day timeframe, Geico, at its discretion, concluded the charges warranted payment and did so accordingly. Professional assumed the risk of not being paid due to its tardy submission, but the opportunity to receive payment was not extinguished. If this Court were to take the position that all claims submitted untimely must be denied by an insurer, the Legislature’s intent would be undermined.

Therefore, this Court concludes the lower court did err in granting summary judgment to Appellee since, as a matter of law, Appellant was not required to refuse payment even though Professional submitted their claims 60 days from the date of service.

Based on the forgoing, we REVERSE the lower Court’s decision and REMAND this matter for a ruling consistent with this opinion. (REYES, J., concurs.)

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(EMAS, J., dissents with an opinion.) I respectfully dissent.

The material facts of this case are not in dispute: Geico’s insured was involved in an automobile accident. He sought treatment for his injuries under his PIP policy from several providers, including Coral Imaging. Coral Imaging provided medical services to the insured and submitted a timely bill for $2300.

However, payment was denied on these timely-submitted claims¹ because Geico had already exhausted the $10,000 limits under its insured’s PIP policy. The limits were exhausted, in part, because Geico paid two untimely claims submitted by Professional Reading, thereby diminishing and eventually exhausting the available PIP benefits under the insured’s policy.

Coral Imaging sued Geico for payment of the outstanding portion of the timely-submitted bill, claiming that Geico’s payment of untimely claims was improper.

The question squarely presented is whether the insurer has the right under the statute to pay for the services rendered by a provider when the provider has concededly failed to submit the bills within the timeframe mandated by §627.736(5)(b) and has violated the express terms of the statute by including untimely claims in the billing statement submitted to the insurer. The majority holds that the statute does not prohibit the insurer from paying these late claims, and that the payment of such late claims counts against the $10,000 limits of the insured’s PIP benefits, thereby preventing another provider from receiving payments for services provided and billed for on a timely basis. I believe that such a statutory interpretation is not logical, reasonable, or intended by the Legislature.

This case involves the interpretation of Section 627.736(5)(b), Florida Statutes (1999), which establishes the requirements for payment of Personal Injury Protection (PIP) benefits under Florida’s No-Fault Law. The relevant portion of that statute provides:

(b) With respect to any treatment or service, other than medical services billed by a hospital for services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or 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 of services rendered up to, but not more than, 60 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. (Emphasis supplied).

In addressing the proper interpretation of a statutory provision, courts must defer to the legislative intent as expressed by the statute in question. “Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law. . . .” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, at 85 (Fla. 2001). A fundamental principle of statutory construction is that “[w]here the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” Rodriguez at 85.

The initial question which must be answered, then, is whether the wording of the statute is “clear and amenable to a logical and reasonable interpretation.” I conclude that the majority’s interpretation of the statute does not meet this threshold test.

Under the relevant provisions of Fla. Stat. §627.736(5)(b):

1) A provider of medical services must submit to the insurer a statement of charges for treatment or services rendered to the insured;

2) The provider’s statement of charges“may not include. . . charges for treatment or services rendered more than 30 days”before the date the statement of charges is sent to the insurer.

3) The insurer is not required to pay charges for treatment or services which were rendered more than 30 days before the statement of charges is sent to the insurer.

4) The provider may not bill the injured party for the untimely, unpaid charges.

5) The injured party is not liable to the provider for the untimely, unpaid charges.

The first and most obvious reason why the majority’s statutory interpretation is not logical or reasonable is that it requires the provider to violate one provision of the statute in order to receive the benefit of another provision of the same subsection.

Under the statute, the provider is prohibited from including in its statement of charges any services which were rendered more than 30 days ago (“the statement of charges. . . may not include. . . charges for treatment or services rendered more than 30 days before the postmark date of the statement.”).² Therefore, the provider is not even permitted to submit a bill for untimely services. Only by violating this portion of the statute can we ever reach the question of whether an insurer has the authority to pay an untimely bill.³ In order to be in a position to receive payment on its untimely claim, Professional Reading had to violate the express provisions of Section 627.736(5)(b) by submitting a statement of charges which included untimely-billed services. It cannot logically or reasonably be argued that the Legislature intended to require the provider to violate one portion of a statute in order to receive a benefit under another portion of the same statute.

Furthermore, the entire intent of the 30-day time limitation would be eviscerated under the interpretation urged by Appellant and adopted by the majority. The unreasonableness of this position can be seen by taking the majority’s interpretation to its logical conclusion, resulting in this very possible scenario:

1) Assume that Coral Imaging submits a timely bill for services totaling $10,000 (representing the limits of the PIP benefits).

2) Assume further that Professional Reading submits an untimely bill for services totaling $10,000 (also representing the limits of the PIP benefits).

3) Geico, the insured, receives Coral Imaging and Professional Reading’s bills on the same day, and notes that Coral Imaging’s bill was timely while Professional Reading’s bill was untimely.

4) Under the majority’s interpretation, Geico has the right to pay either Coral Imaging’s timely bill or Professional Reading’s untimely bill.

5) Geico chooses to pay the entire $10,000 to Professional Reading for its untimely bills, thereby exhausting the limits of the PIP policy.

6) As a result of paying the untimely bill and exhausting the limits of the PIP policy, Geico denies all payment on Coral Imaging’s timely-submitted bill of $10,000.

7) Coral Imaging, having been denied payment on its timely-submitted bill, now seeks payment from the insured for the $10,000 in services provided.

These results expose an interpretation of the statute that is neither reasonable nor logical: the statute provides that “the injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph.” The 30-day time limitation requires a provider to submit its bill on a timely basis and, if the provider does not do so and the insurer does not pay, the provider cannot bill the insured for the services. This provision is intended to put teeth into the 30-day time limitation by placing the provider on notice that it will have no recourse against the insured if it fails to meet the time requirements under the statute.

However, by paying Professional Reading’s untimely bills (and in doing so, exhausting the PIP benefits) the insurer has exposed its own insured to an additional $10,000 obligation from Coral Imaging; upon exhausting the PIP benefits by paying Professional Reading, and denying payment to Coral Imaging on its timely bill, Coral Imaging is now permitted to seek payment from the insured because it complied with the statutory 30-day time requirement.

If, on the other hand, Geico chose (or was duty-bound by statute) to deny Professional Reading’s untimely bill (therefore allowing Geico to pay Coral Imaging’s timely bill of $10,000), Professional Reading would have no recourse against the insured because the statute provides that “[t]he injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph.”

Therefore, if the majority’s reading of the statute is accurate, the insurer may unilaterally decide whether its insured will be exposed to liability for Coral Imaging’s timely-submitted bill by exercising its authority under the statute to pay an untimely-submitted bill. This interpretation allows the insurer to avoid or defeat altogether the purpose of the time limitation by paying an untimely provider and subjecting its own insured to liability the statute was created to prevent. Given this application, I do not believe that the majority’s interpretation of Section 627.736(5)(b) can be characterized as logical or reasonable.

In order to be construed logically and reasonably, and to effectuate the legislative intent, the statute must be read as:

1. Prohibiting the provider from submitting for payment the untimely charges and (if said untimely charges are improperly submitted) requiring the insurer to deny payment as violative of the express provisions of Fla. Stat. §627.736(5)(b); or

2. Prohibiting, or treating as gratuitous, any payment for charges submitted in violation of the 30-day time requirements.

Support for this conclusion is found in the Supreme Court’s recent opinion in Warren v. State Farm Mutual Auto. Ins. Co., 899 So.2d 1090 (Fla. 2005). In upholding the time requirements as constitutional, the Court stated:

[I]ncluded in the no-fault statute is a provision for a procedure through which medical providers may file claims and receive payment for services provided. See §627.736(5)(a), Fla. Stat. (1999). Section 627.736(5)(b) sets forth the procedures with which treating medical providers must comply in order to receive payment from the no-fault insurer for services rendered.

Prior to 1998, the only limitation placed on the timely submission of medical provider claims to insurance companies was the five-year statute of limitations for a breach of contract claim. As a result, medical providers could potentially allow charges to mount, and submit charges for services rendered over a long period of time, and distant from the time of the original accident. In 1998. . . the Legislature amended section 627.736(5)(b) to expressly provide a thirty-day limitation on medical provider billing. Section 627.736(5)(b), Florida Statutes (1999), requires medical providers to postmark claims no later than thirty days following the date of treatment, or be subject to automatic claim denial by the insurer.

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It is apparent by its plain language that the intent of the statutory provision at issue was to impose statutory time limits on the submission of medical bills under the no-fault scheme rather than adherence to the statutory limitations period provided for court actions for breach of contract.

Warren, 899 So.2d at 1094, 1095 (emphasis supplied).

Although the Supreme Court in Warren was not faced with the question of an insurer’s authority to pay a bill that violates the time and billing requirements of Section 627.736(5)(b), it is instructive that the Court used the above language in describing the mandatory nature of the time requirements before a provider can receive payment. An interpretation of a statute by the highest court of a state is generally regarded as an integral part of the statute. Seddon v. Harpster, 396 So.2d 662 (Fla. 2d DCA 1979).

I believe that, in order to interpret the statute in a logical and reasonable manner, and to effectuate its legislative purpose, the provision must be read as prohibiting Geico from paying the untimely and improperly-billed charges submitted by Professional Reading, as violative of the provisions of §627.736(5)(b). Alternatively, the payment by Geico must be characterized as “gratuitous”, and should not be considered as having been made against the limits of the PIP policy. While Geico remains free to pay providers for charges that are untimely or otherwise submitted in express contravention of the statute, such payments should not be considered a “payment” under the PIP policy. By interpreting the statute in this manner, the remaining provisions of Section 627.736 will be effectuated and the clear legislative intent fulfilled.

For these reasons, I would affirm the order of the trial court.

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¹Actually, $365.36 remained available under the policy limits of $10,000, so Geico paid that amount to Coral Imaging. Geico denied payment of the remaining amount of the bill ($1934.64).

²In the context of this statutory provision “may not” is the equivalent of “shall not,” and cannot reasonably be interpreted as permitting the provider to include untimely charges in its bill. Thousands of analogous examples can be found throughout Florida’s constitutional and statutory provisions. See, e.g., Art. III, §8(a), Fla. Const.; Fla. Stat. §11.062(2)(a); §11.066(4); §11.70(3)(d); §14.29(3)(b), (12); §20.04(7)(a); §20.19(6)(f); §20.23(2)(a)3; §27.34(2); §27.711(3); §28.241(3), (4); §29.004(10)(d); §39.012; §39.013(2); §44.06(2); §63.0423(5) and (6); §90.604. C.f., e.g., Fla. Stat. § 627.4143(3)(b) (provision in same chapter utilizing permissive language “may or may not”); 11.70(5)(d) (same); §121.091(7)(b) (same); §154.09(4) (same); §180.26 (same); §260.012(3) (same); §475.611(1)(a)3 (same).

³Regardless of the timeliness of the claim, it is difficult to conceive of another way in which an insurer would be aware that a provider has rendered necessary and reasonable medical services to the insured arising out an automobile accident unless the provider first submits a bill to the insurer.

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