14 Fla. L. Weekly Supp. 893b
Insurance — Personal injury protection — Notice of claim — Waiver — Partial payment of claims submitted on HCFA forms from which medical provider’s professional license number was omitted did not waive insurer’s right to assert that deficient forms failed to place insurer on notice of covered loss
ADVANCED SPINE & INJURY CENTER, P.A. on behalf of Carmen Arenas, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, f/k/a PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit, Pinellas County, Small Claims Division. Case No. 06-005161SC-048. UCN 522006 SC005161XXSCSC. June 22, 2007. Dorothy L. Vaccaro, Judge. Counsel: R. Stanley Gipe, Clearwater. Wendy L. Pepper, Rissman, Barrett, et al., Tampa.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE heard on June 12, 2007, on Defendant’s Motion for Summary Judgment, the Court having considered argument of counsel, the record in this cause, all relevant authority and being fully advised, the Court makes the following findings of fact and conclusions of law:
1. This action arises out of unpaid personal injury protection benefits due to an automobile accident that occurred on September 24, 2005. Plaintiff accepted an assignment of benefits from its patient who sought treatment.
2. The Plaintiff submitted HCFA forms seeking payment for dates of service from January 27, 2006 through March 31, 2006.
3. The HCFA forms did not include the professional license number of the provider in Box 31.
4. The Defendant did make partial payments on the bills that were submitted.
5. Subsequent to this action being filed, the Defendant filed a Motion for Summary Judgment on the grounds that the Plaintiff failed to place the defendant on notice of a covered loss or medical bills due, pursuant to the requirements of Florida Statutes, Section 627.736(5)(d) (2003).
6. In support if its motion, Defendant filed the HCFA forms in question. Plaintiff did not dispute that the HCFA forms filed by the Defendant were the ones also submitted by the Plaintiff for payment. The HCFA forms clearly demonstrate that the professional license number was missing from Box 31.
7. However, the Plaintiff argued that based on the partial payments made on the Plaintiff’s submissions, the Defendant waived the right to assert the deficiency in the HCFA forms.
8. The Court is persuaded by the claim of waiver; however, the Defendant pled in its Affirmative Defenses that the Plaintiff failed to satisfy the conditions precedent to filing suit by the Plaintiff submitting incomplete HCFA forms contrary to F.S. 627.736(5)(d). (See Ingersoll vs. Hoffman, D.D.S., 589 So.2d 223 (Fla. 1991), which states the failure to comply with statutory pre-litigation notice requirements in dental practice action may be waived, if denial of satisfaction of a condition precedent is not specifically pled and with particularity).
9. Based on this assertion, the Defendant has not waived its ability to raise this claim pursuant to F.S. 627.736(4)(b) (2003) which states in pertinent part:
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.
10. Therefore, the Court cannot find that the Defendant waived its right to assert the deficiency in the HCFA forms; i.e. the absence of the professional license number of the provider in Box 31, since the deficiency may be asserted even after payment is made or after the 30 day time period for payment has expired.
11. F.S. 627.736(5)(d) (2003) 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. . .”
and 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.
12. Based on the absence of the professional license number from the HCFA forms, the Defendant has not been placed on notice of a covered loss pursuant to F.S. 627.736(5)(d) (2003).
13. Consequently, by failing to put the Defendant on notice of a covered loss, the Plaintiff failed to meet the statutory condition precedent to filing this lawsuit.
14. Therefore, no genuine issue of material fact exists to support this lawsuit and the Defendant is entitled to Summary Judgment as a matter of law. It is therefore
ORDERED AND ADJUDGED that the Plaintiff, ADVANCED SPINE & INJURY CENTER, P.A. on behalf of Carmen Arenas, shall take nothing by this action and the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, f/k/a PROGRESSIVE AUTO PRO INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs. [Editor’s note: see 14 Fla. L. Weekly Supp. 1959a.]
