14 Fla. L. Weekly Supp. 292a
Insurance — Personal injury protection — Notice of loss — Professional license number — Affidavit of litigation adjuster submitted by insurer in support of motion for summary judgment on notice of loss issue is admissible where, although affidavit states that it is based on “my information and belief,” statements in affidavit establish that adjuster has requisite personal knowledge to authenticate bills at issue — Waiver of defense — Insurer did not waive defense of lack of notice of loss based on failure to include medical provider’s professional license number on bills by earlier denial of bills based on independent medical examination cutoff — Statute provides that lack of notice defense can be raised at any time — Where dates of service at issue were after effective date of 2003 amendment mandating that license number be included on all bills, and it is undisputed that bills at issue do not contain license number, bills did not put insurer on notice of covered loss
HOPE HEALTH & WELLNESS, (as assignee of Michelle Henderson), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-04-SC-02618. July 28, 2006. Sandra Bosso-Pardo, Judge. Counsel: Robert H. Peterson, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Shannon M. Mahoney.
FINAL ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come on Defendant’s Motion For Summary Judgment before the Honorable Sandra M. Bosso-Pardo on March 17, 2006, and upon hearing arguments of counsel, reviewing the record evidence, and being otherwise fully advised in the premises, the Court makes the following findings of fact and law:
UNDISPUTED FACTS
1. This is a breach of contract action for personal injury protection (“PIP”) benefits governed by §627.736, Florida Statutes, (2003).
2. At all times material, Michelle Henderson was Defendant’s, GEICO GENERAL INSURANCE COMPANY (“GEICO”), insured.
3. August 20, 2002, during the effective period of the policy of insurance with GEICO, Ms. Henderson was involved in a motor vehicle accident, purportedly resulting in injuries to her person.
4. Beginning on July 25, 2003, Henderson sought medical treatment from Plaintiff medical provider, HOPE HEALTH & WELLNESS (“HOPE HEALTH”).
5. Based on an Assignment of Benefits, HOPE HEALTH billed GEICO directly for payment from Ms. Henderson’s PIP benefits.
6. GEICO paid all of the HOPE HEALTH bills submitted for all dates of service until the results of Ms. Henderson’s Independent Medical Examination (“IME”) were obtained.
7. Effective September 30, 2003, Ms. Henderson’s PIP benefits were cut off based on the conclusions in the IME Doctor’s report.
8. GEICO sent correspondence to HOPE HEALTH and Ms. Henderson explaining the IME cutoff.
9. After the September 30, 2003 benefits cutoff, Ms. Henderson continued to receive medical treatment from HOPE HEALTH.
10. After the September 30, 2003 benefits cutoff, HOPE HEALTH continued to submit bills to GEICO for payment of medical services rendered on Ms. Henderson.
11. Specifically, the bills submitted after the IME cutoff were for dates of service November 19, 21, 24, 26 and December 1, 2003. GEICO denied payment of these bills based on the IME cutoff.
12. Only the bills involving these five (5) dates of service are at issue in this litigation (“subject bills”).
13. All of the subject bills were submitted on HCFA 1500 (CMS
1500) forms.
14. None of the subject bills contained the professional license number for a health care provider in Box 31, nor anywhere else on the bill.
ANALYSIS AND CONCLUSIONS OF LAW
15. The primary matter for this Court to consider is whether the subject bills, submitted without the professional license of the health care provider, provides GEICO with “written notice of the fact of a covered loss and of the amount of same” as required by the PIP Statute.
16. The Court considers the following arguments from both parties.
Sufficiency of Affidavit
17. The first issue addressed by this Court is whether the evidence submitted by GEICO in support of its Motion for Summary Judgment is admissible.
18. GEICO timely submitted an Affidavit sworn to and executed by the GEICO litigation adjuster assigned to the file.
19. As GEICO’s primary evidence, the Affidavit attached the subject bills that were submitted by HOPE HEALTH.
20. The Affidavit authenticates the attached bills by identifying them as true and correct copies of the subject bills submitted by HOPE HEALTH.
21. Although the Affidavit expressly states that it is based upon “my information and belief”, HOPE HEALTH contends that the Affidavit is insufficient to allow the subject bills to come into evidence for consideration by the Court.
22. HOPE HEALTH asserts that FRCP 1.510(e) requires the Affidavit to specifically state that the Affidavit is based upon “personal knowledge”.
23. In its analysis, the Court looked at the substance of the Affidavit’s content to determine whether it sufficiently sets forth a factual basis establishing that the affiant is in a position to necessarily possess the requisite knowledge. See Carter v. Cessna, 498 So. 2d 1319 (4th DCA 1986).
24. The Court considered the other statements set forth in the Affidavit in determining its sufficiency.
25. GEICO’s adjuster expressly states that: “I am employed as a litigation representative on behalf of Defendant, GEICO GENERAL INSURANCE COMPANY”; “I am assigned to the above-captioned matter and possess all documents related to the claim within the file”; “I have reviewed the file to ascertain and determine relevant facts applicable to Defendant’s two Motions for Summary Judgment based on Plaintiff’s failure to provide notice of a covered loss and lack of standing”; “Specifically, the facts and documents within the claims file that form the bases the Motions for Summary Judgment are . . . ”.
26. This Court’s ruling is that the statements contained in the Affidavit establish that GEICO’s adjuster possesses the requisite knowledge to authenticate the subject bills.
27. As a result, the subject bills come into evidence and shall be considered by this Court.
Waiver of Notice of Covered Loss Defense
28. The second issue considered by the Court is whether, as HOPE HEALTH contends, GEICO waived its right to raise the defense that the subject bills failed to place GEICO on written notice of the fact of a covered loss and of the amount of same as required by §627.736(4)(b).
29. HOPE HEALTH relies on the fact that GEICO originally denied the subject bills based on an IME cutoff. As such, HOPE HEALTH contends, GEICO is prevented from asserting the “notice of a covered loss” defense.
30. GEICO counters HOPE HEALTH’s position by arguing that the PIP Statute expressly provides that an insurer may raise the defense at anytime.
31. In support of its position, GEICO relies on §627.736(4)(b), which reads in pertinent part:
Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . 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. (emphasis added)
32. Given that GEICO’s defense is raised pursuant to “subsection (5)” of §627.736, the Court finds that GEICO has not waived this defense based on the express terms contained in the above-identified subsection (4)(b).
Notice of the Fact of a Covered Loss
33. The only remaining issue that this Court must consider is whether subsection (5) of the PIP Statute contains a provision that supports GEICO’s defense.
34. It is undisputed that the subject bills do not contain the professional license number of a healthcare provider.
35. It is further undisputed that the subject dates of service were after October 1, 2003, which is the effective date of the relevant Amendment to the PIP Statute.
36. GEICO argues that the PIP Statute expressly provides that bills for dates of service after October 1, 2003 mandate the inclusion of the professional license number of the provider pursuant to §627.736(5)(d), which states in pertinent part:
All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form . . . 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.” . . . For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of 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. (emphasis added)
37. The Court notes that the language requiring the inclusion of the professional license number of the provider was specifically added into the 2003 Amendments.
38. The Court concludes that the clear language contained in the Statute supports GEICO’s defense that the provider must include the professional license number in Box 31 of a bill submitted for payment of PIP benefits.
39. As such, failure to include the professional license number is fatal to the subject bills, as they do not qualify as putting the insurer on written notice of the fact of a covered loss.FINAL JUDGMENT
IT IS HEREBY ADJUDGED that Plaintiff, HOPE HEALTH & WELLNESS (a/a/o Michelle Henderson), take nothing by this action and Defendant, GEICO GENERAL INSURANCE COMPANY, shall go hence without day and the Court shall retain jurisdiction for the purpose of determining any motion by the Defendant to tax fees and costs.
