15 Fla. L. Weekly Supp. 502a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Failure to detail services rendered on D&A form or write “see attached” on form does not render form deficient where there is no allegation of fraud and PIP patient log that contains insured’s signature and attests that services were actually rendered and explained to insured, physician’s notes and CMS 1500 billing statements were attached to D&A form
BAYOU CHIROPRACTIC CENTER, PA, dba ART OF CHIROPRACTIC a/a/o Allen Morgenstern, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2007 SC 007154, Division V. March 13, 2008, nunc pro tunc to March 11, 2008. Pat Kinsey, Judge. Counsel: Robert N. Heath, Jr., McDonald Fleming Moorhead, Pensacola, for Plaintiff. James C. Rinamin, III, James C. Rinamin and Associates, P.A., Jacksonville, for Defendant.
AMENDED ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
At a hearing in open court on February 27, 2008, the parties appeared through counsel. Each filed opposing motions for summary judgment in this case and its companion case 2007 SC 007155 with the assignee of Andrea Morgenstern. The parties filed a Stipulation wherein they agree there was a motor vehicle collision on May 9, 2007, and that the Morgensterns were injured causing them to seek medical care from plaintiff. The parties stipulate that the treatment was reasonable, medically necessary and related to this May 9, 2007 collision. They stipulated that the bills were timely submitted to USAA on properly completed billing forms, and that the pre-suit demand letter was in compliance with §627.736(11), Florida Statutes.
Especially important to this case is the stipulation that the initial billing package sent to USAA included the CMS 1500 billing forms, office notes for each date of service, a Disclosure and Acknowledgement form (D&A form), assignment of benefits form and PIP patient log. Defendant USAA denied payment for any and all medical treatment provided by plaintiff on behalf of their insureds and relies solely on their argument that the D&A form is deficient because paragraph one (1) does not contain the words “see attached.”
Citizens of Florida, such as the Morgensterns, purchase insurance faithfully making payments so that if and when they are injured they can obtain medical assistance to regain their health and physical condition and return to daily life in a manner as if they had not been injured — or at least with all the relief medical treatment can provide. In Florida, the Legislature requires drivers to carry PIP insurance which provides “No Fault” coverage in an attempt to guarantee swift and virtually automatic payment of benefits. Gov’t Employees Ins.Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987). When considering a motion for summary judgment, the court must draw every possible inference in favor of the non-moving party, and it should not be granted unless the record demonstrates that there is no genuine issue of material fact.
Because of real or perceived fraud involving PIP benefits, the Legislature enacted a law which requires the medical provider to discuss the services to be provided with their patient, to disclose in writing all services being provided, and have the patient sign attesting to the fact that this medical treatment was actually received and not improperly solicited. See Section 627.736(5)(e), Florida Statutes. This is accomplished through the D&A form. Because the intent of this statute is to prevent fraud, it is only required at the time of the initial visit. See subsection (e)(9). Furthermore, it is not required under emergency conditions further confirming its purpose as being the Legislature’s concern about improper solicitation and/or fraud. See (e)(6).
Here it is stipulated by defendant USAA that the medical treatment rendered was medically necessary, related and reasonable. There is no allegation of fraud of any form or type. Their insured purchased insurance, paid premiums as promised and then, when injured in a covered motor vehicle collision, sought and received medical treatment as. provided in their policy and now ask their insurer to provide the benefits they purchased.
It is undisputed that the medical provider did not complete the D&A form properly. The form contains the following section:
1. The services set forth below were actually rendered. This means that those services have already been provided.
It is further undisputed that the lines in paragraph (1.) were left blank in the form although it was properly signed and dated. It is further undisputed that attached to this form and dated the same day, was the PIP patient log, also signed and dated by the insured and containing the language, “My signature on this document attests to the fact that the services set forth herein were actually rendered. The person rendering the medical services for which a claim will be submitted has explained the services to me in detail.” Also attached were the physician’s notes and properly completed and signed CMS 1500 billing statements also confirming the actual services rendered.
Defendant USAA seeks to avoid payment of benefits by arguing that the failure to write the words “see attached” or detail the services rendered on the D&A form in paragraph one renders the form invalid and relieves them of any responsibility to their insured. Considering the attachments provided to the D&A form, this ignores the purpose of the PIP statute and relies on a pure “form over substance” position.
Since the substance of paragraph (1.) is contained in the attached documents and the attached documents are legally sufficient to establish the legally required “substance,” even though the words “see attached” are not written directly on the D&A form, and, since the balance of the intent of the Legislature is met within the “self-contained” words of the D&A form, the plaintiff has easily met its burden of establishing there was no fraud and that the patient was fully informed of all rights and responsibilities. In fact, defendant USAA does not even contest the fact that their insured was fully protected as were they themselves or make any claim of prejudice to them or their insured by this failure to write the words “see attached” on the D&A form.
Furthermore, there is a long-standing policy of construing provisions of the Florida No-Fault Act liberally in favor of the insured. Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986). There can be no question, especially under the facts of this case, that there is substantial compliance with the requirement of §627.736(5)(e). Race v. Nationwide Mutual Fire Ins.Co., 542 So.2d 347 (Fla. 1989). Although defendant USAA asks the court to find as a matter of law that they do not need to pay their insureds’ benefits, the Legislature provided no specific penalty and/or remedy for failure to complete the D&A form. The legislature could have made it a condition precedent to receiving PIP benefits such as they did the requirement for a “demand letter” but did not.
Having considered the memoranda submitted by counsel, the motions filed, together with all attachments and argument of counsel, it is
ORDERED AND ADJUDGED that defendant’s motion for summary judgment is denied and plaintiff’s motion for summary judgment is granted.
