15 Fla. L. Weekly Supp. 160a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Medical provider’s affidavit stating that he would have attempted to cure defect had insurer cited failure to provide disclosure and acknowledgment form as reason for denial of claim in explanation of benefits is improper where affidavit was not signed in presence of notary — Even if affidavit were proper, it is not legally sufficient to raise disputed issue of material fact as to whether insurer waived disclosure and acknowledgment defense because failure to provide required form failed to put insurer on notice of covered loss, and insurer is not required to list every reason for denial of claim in EOB
CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A. (a/a/o ALEXIS RIVERO), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-00276 COCE 53. October 9, 2007. Robert W. Lee, Judge. Counsel: Caroline Perlegas, Marks & Fleischer, for Plaintiff. David Hwalek, Matt Hellman, P.A., Plantation, for Defendant.
AFFIRMED at 16 Fla. L. Weekly Supp. 37b
FINAL SUMMARY JUDGMENT FOR DEFENDANT UNITED AUTOMOBILE INSURANCE COMPANY
THIS CAUSE having come before the Court for hearing on October 2, 2007, on Defendant United Automobile Insurance Company’s Renewed Motion for Final Summary Judgment, and the Court having reviewed the file, the deposition of record, including Defendant’s motion, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
Nature of the Case
1. The Plaintiff, Chiropractic Radiology Consultants, P.A. (“Chiropractic Radiology”), brought this declaratory action seeking recovery of personal injury protection (“PIP”) benefits [actual damages], and nominal damages under section 627.736, Florida Statutes. By its complaint, Chiropractic Radiology sought a Declaratory Judgment [Count I], Breach of Contract for Failure to Provide a Timely Itemized Specification or a Sufficient Itemized Specification [Count II], and Breach of Contract Pursuant to F.S. 627.736(4)(b) — Late Payment [Count III]. Chiropractic Radiology submitted a CMS 1500 bill for one date of service [3-14-06], billing CPT codes 72040 with a 26 modifier, and 72100 with a 26 modifier [said bills were for an interpretation of x-rays]. Chiropractic Radiology did not submit a disclosure and acknowledgment form.
2. The Defendant, United Automobile Insurance Company [“United”], moved for summary judgment, asserting that because a disclosure and acknowledgement was not submitted, the Defendant was not provided with notice of a covered loss.
3. On 5-17-07, this Court granted [in part] the Defendant’s Motion for Summary Judgment to the extent the Plaintiff did not provide the statutory disclosure and acknowledgment form. Final summary judgment was not granted because “there continues to be a disputed issue of material fact on the Plaintiff’s pled avoidance of waiver”.
4. Subsequently, the Defendant served its Renewed Motion for Summary Judgment, based upon the deposition testimony of United’s adjuster [was not available for the original Defendant’s Motion for Summary Judgment, as said deposition was taken on 5-16-07].
Findings of Fact
5. The facts material to United’s motion for summary judgment are undisputed and established by the pleadings and deposition of record. The material facts are set forth below.
6. On March 13, 2006, Defendant’s insured, Alexis Rivero [“Insured”], was involved in a motor vehicle accident.
7. Chiropractic Radiology submitted CMS 1500 bill for x-ray interpretations [date of service March 14, 2006]. This is the only date of service for which Chiropractic Radiology submitted a CMS 1500 form.
8. Chiropractic Radiology did not submit a disclosure and acknowledgment form pursuant to Florida Statute 627.736(5)(e).
9. In response to Chiropractic Radiology’s single CMS 1500 form bill, United issued an itemized specification stating the reason for non payment was because it was below the deductible.
10. United timely served its Answer and Affirmative Defenses. Said defenses included the defense that the Chiropractic Radiology did not provide a disclosure and acknowledgment form pursuant to Florida Statute 627.736(5)(e).
11. Chiropractic Radiology timely served their Reply/Avoidances to United’s Affirmative Defenses, including the allegation that United waived and is estopped from asserting the disclosure and acknowledgment defense.
12. United’s adjuster, via deposition testimony, indicated that she did not notice that the disclosure and acknowledgment form was not sent by Chiropractic Radiology prior to the issued itemized specification/explanation of benefits [indicating that Chiropractic Radiology’s bill was applied to the deductible]. Additionally, United’s adjuster stated that there was no intention of waiving the disclosure and acknowledgment defense.
13. Chiropractic Radiology’s interpreting physician, Dr. Atherton, submitted a purported affidavit alleging if he would have known that United would have denied the bill based upon the non submission of the disclosure and acknowledgment form, he would have attempted to cure the defect.
14. Dr. Atherton did not sign the purported affidavit in the presence of the notary, notwithstanding said affidavit stating “[b]efore me, the undersigned authority, personally appeared William Atherton, D.C., who is personally known to me, and who after being duly sworn, deposes and says that he has read the foregoing and states the same to be true and correct. Sworn to and subscribed before me this 27 day of September, 2007”.Conclusions of Law
15. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
16. Florida Statute 627.736(5)(e) requires a disclosure and acknowledgment form to be submitted to an insurer when a service involves an interpretation/reading of a diagnostic test. As such, Chiropractic Radiology was required to submit the disclosure and acknowledgment form.
17. This Court considers the affidavit of Dr. Atherton as improper and a violation of the State’s Notary Rules and Notary Laws. Even if the affidavit were properly before this Court, the Court finds it legally insufficient to raise a disputed issue of material fact as to the issue of waiver because, as this Court has previously ruled, the failure of a claimant to provide a required disclosure and acknowledgment form fails to put the insurer on notice of a covered loss, pursuant to Florida Statute 627.736(4)(b).
18. Additionally, this Court has previously ruled that the failure of the insurer to put a specific reason in its explanation of benefits, in this case the failure to provide notice of a covered loss because of the non submission of a disclosure and acknowledgment form pursuant to F.S. 627.736(5)(e), is not fatal to the insurer’s position because Florida Statute 627.736(4)(b) does not require the insured to list every reason it has in denying a claim. In this Court’s view, it would not make much sense for an insurer to have to explore the entire claim when it has a good faith reason to believe it has the right to deny a claim, such as a deductible, and then continue to investigate the claim to list every possible reason for non payment. Florida Statute 627.736(4)(b) does not require the insurer to list every reason for non payment in the itemized specification/explanation of benefits. The insurer does not lose its ability to deny payment merely because a reason for non payment is not specifically identified in the itemized specification/explanation of benefits.
19. In this particular case, the undisputed evidence before the Court indicated that United did not intend to waive this argument and nothing before this Court rebuts that. Even if the Court were to consider Dr. Atherton’s affidavit, the mere fact that Dr. Atherton states because the disclosure and acknowledgment non submission was not listed as a reason for non payment in United’s explanation of benefits [and that Dr. Atherton was not aware that it would be an issue for non payment] does not have any relevance in the Court’s view of United’s intent.Final Judgment
IT IS HEREBY ADJUDGED that Plaintiff, Chiropractic Radiology Consultants, P.A. (a/a/o of Alexis Rivero), take nothing by this action and Defendant, United Automobile Insurance Company, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
