14 Fla. L. Weekly Supp. 479a
Insurance — Personal injury protection — Notice of loss — Where disclosure and acknowledgment form failed to list or describe treatment rendered and did not contain attestation of treating physician, and CMS 1500 claim form did not include professional license number of medical provider in box 31, insurer was not given written notice of covered loss — Summary judgment entered in favor of insurer
JULIA CLARK, a/k/a JULIA GEIGER, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2006-SC-004375, Division N. December 20, 2006. Gary Flower, Judge. Counsel: Vincent P. Gallagher, Gallagher Law Firm, P.A., Jacksonville, for Plaintiff. Lindsay A. Cole, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONS FOR FINAL SUMMARY DISPOSITION
THIS CAUSE, came to be heard on October 16, 2006, on Defendant’s Motion for Summary Disposition Re: Improper Completion of Disclosure and Acknowledgment Form and Defendant’s Motion for Summary Disposition Re: Improper Health Insurance Claim Form (CMS 1500). Present before the Court appeared counsel for Defendant, Lindsay A. Cole, Esquire and James C. Rinaman, III, Esquire, and counsel for Plaintiff, Vincent P. Gallagher, Esquire. Having considered the argument of counsel, the record in this cause, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. Rule 7.135 of Florida’s Small Claims Rules provides that at pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.
2. Plaintiff filed this action for personal injury protection (PIP) benefits regarding nonpayment of No-Fault benefits for services rendered to Plaintiff by E. Edward Franco, M.D. at the Imaging Center at Forbes Street (hereinafter referred to as “Imaging Center”) on February 23, 2004 and March 8, 2004.
3. With regard to Defendant’s Motion for Summary Disposition Re: Improper Completion of Disclosure and Acknowledgment Form, the Imaging Center submitted and Defendant received a Disclosure and Acknowledgment PIP Treatment Form covering the services performed on February 23, 2004 and March 8, 2004.
4. Pursuant to section 627.736(4)(b) of the Florida Statutes, PIP benefits paid pursuant to that section shall be considered overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss. FLA. STAT. §627.736(4)(b) (2006).
5. When providing the insurer with written notice of a covered loss, the provider is required to submit a disclosure and acknowledgment in compliance with section 627.736(5)(e) of the Florida Statutes.
6. Section 627.736(5)(e) of the Florida Statutes requires, inter alia, that “At the initial treatment or service provided, each physician . . . providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person . . . to execute a disclosure and acknowledgment form . . . ” and “ . . . the form shall be furnished to the insurer pursuant to paragraph (4)(b) . . . ”
7. Section 627.736(5)(e)(1) of the Florida Statutes requires: “The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered.”; “The insured . . . has both the right and affirmative duty to confirm that the services were actually rendered.”; and “That the physician . . . rendering services for which payment is being claimed explained the services to the insured .
8. Section 627.736(5)(e)(7) of the Florida Statutes states that “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 standard disclosure and acknowledgment form contains a section of five attestations of the patient, including a blank line for the description of the services rendered, and a section of four (a-d) attestations of the treating physician.
9. In addition, Section 627.736(5)(e)(4) of the Florida Statutes requires that 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.”
10. The Disclosure and Acknowledgment PIP Treatment Form provided to Defendant failed to list or describe the treatment rendered, did not contain a section of attestations of the treating physician (E. Edward Franco, M.D.), and the treating physician’s signature was affixed by stamp in violation of section 627.736(5)(e) of the Florida Statutes.
11. Because the Imaging Center submitted a non-compliant disclosure and acknowledgment form, Defendant was not furnished with written notice of the fact of a covered loss pursuant to section 627.736(4)(b) of the Florida Statutes.
12. With regard to Defendant’s Motion for Summary Disposition Re: Improper Health Insurance Claim Form (CMS 1500), the Imaging Center submitted and Defendant received a CMS 1500 for February 23, 2004 and for March 8, 2004.
13. When providing the insurer with written notice of a covered loss pursuant to (4)(b), the provider must submit the professional license number of the medical provider rendering treatment in box 31 of the CMS 1500 as set forth below in section 627.736(5)(d) of the Florida Statutes:
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, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. . . . 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]
14. The CMS 1500 provided to Defendant failed to include the professional license number of the provider in box 31 as required by section 627.736(5)(d) of the Florida Statutes. The Imaging Center’s CMS 1500 for February 23, 2004 and March 8, 2004 indicated “Imaging Center at For” (sic), but no license number, in Box 31, labeled “Signature of Physician or supplier, including degrees or Credentials.”
15. Because the CMS 1500 did not include the necessary professional license number in box 31, Defendant was not furnished with written notice of the fact of a covered loss pursuant to section 627.736(4)(b) of the Florida Statutes.
16. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. If the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA 2000).
17. This Court finds that there remains no genuine issue as to any material fact with regard to Defendant’s liability for payment of PIP benefits to Plaintiff under section 627.736(4)(b) of the Florida Statutes and that Defendant is entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, JULIA CLARK, take nothing by this action and Defendant PROGRESSIVE EXPRESS 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.
