14 Fla. L. Weekly Supp. 982a

Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Insurer that failed to provide EOB upon denial of medical provider’s bill waived right to assert that bill was defective for lack of disclosure and acknowledgment form

PRO IMAGING, INC., (Elba Garcia), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-00120 COCE 51. August 21, 2007. Martin R. Dishowitz, Judge. Counsel: Caroline V. Perlegas, Law Offices of Marks & Fleischer, P.A., Fort Lauderdale. Lindsay Porak.

ORDER

THIS CAUSE having come on to be heard before me on Plaintiff’s Motion for Summary Judgment as to Count II and Defendant’s Motion for Summary Judgment and the Court having heard the argument of counsel and being otherwise fully advised in the premises, the Court makes the following findings:

1. This is an action for no-fault benefits pursuant to an automobile insurance contract.

2. Plaintiff provided medical services to Defendant’s insured, Elba Garcia and timely submitted the personal injury protection claim for payment.

3. Defendant did not pay the medical benefits claimed by Plaintiff.

4. It is undisputed that Defendant did not provide an itemized specification (commonly termed “explanation of benefits”) to the Plaintiff pursuant to Fla. Stat. §627.736(4)(b).

5. Fla. Stat. §627.736(4)(b) requires an insurer to provide an explanation of benefits when rejecting or partially paying a claim. Defendant’s failure to provide an explanation of benefits is a breach of the contract for the No Fault Benefits.

6. Defendant’s Summary Judgment (based on its fifth affirmative defense), asserts Plaintiff failed to submit a disclosure and acknowledgment form pursuant to Fla. Stat. §627.736(5)(e).

7. This Court finds that by failing to provide an itemized specification (as required by statute) detailing the reasons for the denial of Plaintiff’s bill, Defendant waived any right it may have had to assert that the bill was defective.

8. An explanation of benefits could have given the Plaintiff an opportunity to cure any alleged defect in the billing submission, but because Defendant never notified Plaintiff of the reasons the bill was denied, Defendant waived its right to deny the bill based on the lack of a disclosure and acknowledgment form.

It is hereby

ORDERED AND ADJUDGED that

I. Plaintiff’s Motion for Summary Judgment as to Count II is hereby GRANTED; and

II. Defendant’s Motion for Summary Judgment is DENIED.