13 Fla. L. Weekly Supp. 619a
Insurance — Personal injury protection — Notice of loss — Where medical provider wrote “See Attached” on lines of Standard Disclosure and Acknowledgment Form provided for description of treatment rendered and attached documents describing treatment, form was properly executed — Nothing in statute or policy requires that all treatment rendered be written on lines of form — Summary judgment — Opposing affidavit — Timeliness — Affidavit in opposition to summary judgment served by hand delivery only one business day prior to summary judgment hearing is stricken — Where provider met burden of establishing that bills were overdue and owing, and insurer had no evidence other than stricken affidavit to dispute provider’s contention that bills were reasonable, related and necessary, summary judgment is granted in favor of provider
SOUTH MIAMI HEALTH CENTER a/a/o Lidia Gomez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-00901 CC 25 01. April 6, 2006. Andrew S. Hague, Judge.ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY FINAL JUDGMENT
Plaintiff’s Motion for Summary Final Judgment was heard in chambers on March 28, 2006 and was granted. Plaintiff’s Motion for Summary Final Judgment seeks Summary Final Judgment as to all of the issues in this case.
The court finds that Defendant admitted, and therefore it is undisputed, that the Plaintiff’s claims for PIP benefits were timely received by Defendant for the treatment that took place in this case between August 23, 2004 and November 24, 2004. The court finds that the Defendant admitted, and therefore it is undisputed, that an automobile accident occurred in this case, that Lidia Gomez was involved in the automobile accident and that she sustained injuries as a result thereof. The court additionally finds that Defendant admitted, and therefore it is undisputed, that the accident subject to this case occurred within the coverage period of Defendant’s insurance policy subject to this case and that coverage exists.
Attached to Plaintiff’s Motion for Summary Final Judgment was the Affidavit of George Wittenmeyer, DC that attested that Plaintiff’s chiropractic treatment and bills were reasonable, necessary and related within the reasonable degree of chiropractic probability regarding the accident subject to this case. The Affidavit further attested that the chiropractic billing was within the usual, customary and normal range for like chiropractors within the Miami-Dade County. Accordingly, the court finds that the Plaintiff had met its burden in establishing that Plaintiff’s medical bills were overdue and owing. The burden then shifts to the Defendant to prove its Affirmative Defenses. Defendant has plead four Affirmative Defenses in this case. Defendant’s Affirmative Defenses are as follows:
1) Defendant states that pursuant to Florida Statute 627.736(5)(e), the Defendant has not been furnished with written notice of the fact of a covered loss due to noncompliance with the statute as the provider did not properly submit to the insurer properly executed disclosure and acknowledgment form per the statute as such the bills are not due and owing;
2) Plaintiff and/or Plaintiff’s medical providers failed and/or refused to comply with Florida Statute 627.736(5)(b) by failing to timely submit the medical bills and as such, this Defendant is not obligated to pay for charges for treatment or services rendered more than 30 days before the postmark date of any and all statements forwarded to Defendant;
3) Defendant states that the Plaintiff has failed to meet all conditions precedent prior to filing of the lawsuit in that Plaintiff has failed to furnish Defendant with proper statutory notice pursuant to F.S. 627.736(11);
4) Defendant states that the expenses billed were not reasonable, related, and/or necessary to the accident set forth in the complaint in that the charges were for excessive services and were excessive in the amount charges per the physical examination of the claimant by a qualified physician, as well as a peer review of the bills and records in question.
The Defendant withdrew its Second and Third Affirmative Defenses. Thus the court only needs to decide the validity of Defendant’s First and Fourth Affirmative Defenses.
The Defendant contends that the Plaintiff failed to complete the Standard Disclosure and Acknowledgment Form that was executed on August 31, 2004 and as a result thereof, the Plaintiff had not properly submitted any of its claims for PIP benefits pursuant to FS 627.736. The Defendant asserted that line 1 of the Standard Disclosure and Acknowledgment Form was incomplete thereby invalidating the entire form. The Defendant contends that the Plaintiff’s writing “See Attached” on line 1 of the Standard Disclosure and Acknowledgement Form was improper as the Plaintiff was required to provide an extensive list of all of the treatment and billing that was provided to Lidia Gomez on August 31, 2004. Here, it was undisputed that the Plaintiff provided to Defendant with a Standard Disclosure and Acknowledgment Form provided by the Office of Insurance Regulation. The Standard Disclosure and Acknowledgment Form was executed on August 31, 2004, Lidia Gomez’ first date of treatment. Line 1 of the Disclosure and Knowledge that Form stated the following:
The services set forth below were actually rendered. This means that the services have already been provided.
Immediately below the above referenced paragraph, are two blank lines. The Plaintiff typed “See Attached” and attached to the Standard Disclosure and Acknowledgment Form are the medical reports and health insurance claim forms regarding the Plaintiff’s first claim for PIP benefits for days of service between August 31, 2004 and October 25, 2004. Defendant does not dispute that Plaintiff’s first claim for PIP benefits attached the Plaintiff’s Initial Report that set forth the Plaintiff’s plan future treatment, Lidia Gomez’ present complaints of pain and present of chiropractic findings, the daily chiropractic records showing all of the treatment and therapy rendered on August 31, 2004, a diagnosis sheet showing Lidia Gomez’ diagnosis dated August 31, 2004, a comparative muscle test report dated August 31, 2004, x-ray reports for August 31, 2004 and health insurance claim forms showing the CPT codes and charges for August 31, 2004. Additionally, Plaintiff’s summary judgment motion provided an affidavit of George Wittenmeyer, DC wherein he testified that Lidia Gomez was explained the medical treatment and medical billing provided to her as required by the Standard Disclosure and Acknowledgment Form. Dr. Wittenmeyer’s affidavit further stated that the Standard Disclosure and Acknowledgement Form did not contain ample space to provide an extensive list of all the treatment that was rendered in explains the Lidia Gomez on August 31, 2004 so Plaintiff typed in “See Attached” and attached the medical reports and medical bills in the manner described above. Dr. Wittenmeyer’s affidavit was undisputed by the Defendant.
Plaintiff’s summary judgment motion additionally attaches excerpts of the testimony of the Defendant’s person with most knowledge in this case. The Defendant’s person with most knowledge had no evidence to dispute that Lidia Gomez was explained items 1-4 and A through D on the Disclosure and Acknowledgment Form. Defendant’s person with most knowledge admitted that nothing contained in Defendant’s insurance policy prevented Plaintiff from completing the Disclosure and Acknowledgment in Form in the above referenced matter.
FS 627.736(5)(e) reads as follows:
(e) 1. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered;
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered;
c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider;
d. That the physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and
e. If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.
2. The physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed has the affirmative duty to explain the services rendered to the insured, or his or her guardian, so that the insured, or his or her guardian, countersigns the form with informed consent.
3. Countersignature by the insured, or his or her guardian, is not required for the reading of diagnostic tests or other services that are of such a nature that they are not require to be performed in the presence of the insured.
4. The licensed medical professional rendering treatment for which payment is being claimed must sign, by his or her own hand, the form complying with this paragraph.
5. The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.
6. This disclosure and acknowledgment form is not required for services billed by a provider for emergency services as defined in s. 395.002, for emergency services and care as defined in s. 395.002 rendered in a hospital emergency department, or for transport and treatment rendered by an ambulance provider licensed pursuant to part III of chapter 401. The Financial Services Commission shall adopt, by rule, a standard disclosure and acknowledgment form that shall be used to fulfill the requirements of this paragraph, effective 90 days after such form is adopted and becomes final. The commission shall adopt a proposed rule by October 1, 2003. Until the rule is final, the provider may use a form of its own which otherwise complies with the requirements of this paragraph.
The court finds that nothing contained in FS 627.736(5)(e) prevents Plaintiff from attaching the documents to the Disclosure and Acknowledgment Form in the manner that Plaintiff did in the instant case. The court finds that nothing in FS 627.736(5)(e)requires all the treatment rendered to the patient to be written in the lines as proscribed by the Defendant in this case.
The court finds that the Plaintiff properly executed a Standard Disclosure and Acknowledgment Form and that the Standard Disclosure and Acknowledgment Form did not need to be completed in the manner prescribed by the Defendant. Accordingly, the court finds that the Defendant’s First Affirmative Defense in this case was without merit.
The Defendant served by way of hand delivery to the Plaintiff an affidavit of Joseph Marfisi, DC at approximately 3:00 PM on Friday, March 25, 2006. As the hearing on the Plaintiff’s summary judgment motion took place on Monday, March 28, 2006, the Defendant served the Affidavit of Joseph Marfisi, DC by Plaintiff only one business day prior to the hearing on Plaintiff’s summary judgment motion. The court finds that Rule 1.510(c), Florida Rules of Civil Procedure requires service by way of hand delivery of opposing affidavits by 5:00 p.m., two business days prior to the hearing of a summary judgment motion. Since Defendant failed to properly serve the Affidavit of Joseph Marfisi, DC on Plaintiff, the court grants the Plaintiff’s motion to Strike the Affidavit of Joseph Marfisi, DC.
The Defendant had no other evidence to support its Forth Affirmative Defense or to dispute the Plaintiff’s contention that its medical bills were reasonable, necessary and related to the accident subject to this case. The court finds that the Plaintiff’s medical bills overdue and owing. Accordingly, the court grants the Plaintiff’s summary judgment motion finding that there was coverage in this case and that the Defendant owed Plaintiff $9,440.00 in PIP benefits less the statutory 20% reduction and any applicable deductible plus statutory penalties for failing to pay medical bills within 30 days.
