14 Fla. L. Weekly Supp. 505a
Insurance — Personal injury protection — Disclosure and acknowledgment form — Where self-generated disclosure and acknowledgment form provided by medical provider failed to list services rendered or to provide physician attestations, form does not comply with statutory requirements, insurer was never placed on notice of covered loss, and claim was never overdue — No merit to argument that insurer should be estopped from defending claim on basis of non-compliant form — Statute provides that insurer can assert that claim is in violation of statute at any time, and elements of equitable estoppel have not been proved
THEODORE JANOWSKI, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-06-SC-4481, Division K. March 8, 2007. Sharon H. Tanner, Judge. Counsel: Vincent P. Gallagher, Gallagher Law Firm, for Plaintiff. Glenn S. Banner, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY DISPOSITION
THIS CAUSE, came before the Court on October 27, 2006, present for Plaintiff was Vincent P. Gallagher, Esquire, and for Defendant appeared Glenn S. Banner, Esquire, for the hearing on Defendant’s Motion for Partial Summary Disposition, and the Court having heard arguments of counsel, reviewed the pleadings, motions and evidence before the Court and being otherwise advised in the premises, it is,
ORDERED and ADJUDGED as follows:
1. Defendant’s Motion for Partial Summary Disposition Re: Imaging Center Network is granted.
2. The Plaintiff, Theodore Janowski, filed suit regarding non-payment of No-Fault benefits for medical services rendered by The Imaging Center Network-Lakewood, related to injuries sustained in a motor vehicle accident that occurred on April 7, 2005. Specifically at issue with regards to The Imaging Center Network-Lakewood (hereinafter “Imaging Center”) are services that were provided by E. Edward Franco, M.D., on June 16, 2005.
3. The Plaintiff was referred by his treating physician to the Imaging Center for diagnostic tests. The initial date of service and the date that services were rendered was June 16, 2005.
4. On June 22, 2005, the Defendant received billing and supporting documentation from the Imaging Center including, a self-generated “Disclosure and Acknowledgment PIP Treatment Form.” The provider did not utilize the standard form authored and adopted by the Office of Insurance Regulation. The Imaging Center’s form did not list or describe the treatment rendered, nor did it contain a section of attestations of the treating physician (E. Edward Franco, M.D.), as required by the statute and the standard form.
5. FLA. STAT. § 627.736(4)(b) states, 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.”
6. FLA. STAT. § 627.736(5)(e)(1) requires,
“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. . .”
FLA. STAT. § 627.736(5)(e)(1)(a) states,
“The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered.”
FLA. STAT. § 627.736(5)(e)(1)(d) states,
“That the physician . . . rendering services for which payment is being claimed explained the services to the insured . . . ”
FLA. STAT. § 627.736(5)(e)(5) states,
“The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) . . . ”
7. Additionally, FLA. STAT. § 627.736(5)(e)(7) 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.
8. FLA. STAT. § 627.736(4)(b), states in pertinent part that an insurer can assert that a claim is in violation of FLA. STAT. § 627.736(5), at any time. The Defendant asserted its statutory right to assert that the claim was in violation of FLA. STAT. § 627.736(5).
9. The statutory language is clear and unambiguous, the standard form promulgated by the Department of Financial Services must be used and the services provided must be stated on the form. The legislature is assumed to have expressed its intent through the words found in the statute. 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. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA. 2000).
10. The self-generated “Disclosure and Acknowledgment PIP Treatment Form” provided by the Imaging Center failed to list or identify the services rendered and failed to provide the physician attestations. The form clearly does not comply with the statutory requirements. The Defendant was never placed on notice of the fact of a covered loss as matter of law. Therefore, the claim was never overdue.
11. The Court is unpersuaded by the Plaintiff’s argument that Defendant should be estopped from defending the claim on the basis of the non-compliant disclosure and acknowledgment form. Further, the factual elements of equitable estoppel have not been proved by Plaintiff.
12. There are no genuine triable issues of fact, the evidence is clear that the Imaging Center submitted a non-compliant disclosure and acknowledgment form (lacking Dr. Franco’s attestations), and the services provided were not identified on the Imaging Center’s disclosure and acknowledgment form in violation of FLA. STAT. § 627.736(5). The form submitted by the Imaging Center does not comply with the legislative requirements or with the standard form. The Defendant was not provided with written notice of the fact of a covered loss pursuant to FLA. STAT. § 627.736(4)(b). Therefore, the claim was never overdue and is a legal nullity. The Defendant is entitled to an order granting its motion for partial summary disposition as a matter of law.
IT IS HEREBY ADJUDGED that Plaintiff, Theodore Janowski, take nothing with regards to its claim for services by The Imaging Center Network — Lakewood, and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
