15 Fla. L. Weekly Supp. 1229a
Insurance — Personal injury protection — Notice of loss — Claim form — Professional license number — Insurer’s action of failing to provide explanation of benefits alerting medical provider to lack of professional license number in box 31 of HCFA form and proceeding with independent medical examination as if no defect in claim existed waived right to assert defense of defective HCFA form
CHIROPRACTIC SPINAL HEALTH, INC., a Florida Corporation (assignee of Defrand, Avissene), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-011486 COCE (54). Claim No. 801173. October 27, 2008. Lisa Trachman, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Brian Pabian, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, came before the court for hearing on October 27, 2008, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background:This is a multi-count P.I.P. case. Defendant alleges in its motion to dismiss that Box 31 of the HCFAs fail to include a professional license number as required by F.S. s. 627.736(5)(d). Plaintiff replies (and moves for summary judgment regarding the defense) that Defendant failed to notify it of the alleged defect until nearly four (4) years after Defendant received notice of the claim, thereby waiving its right to assert said defense. Moreover, Defendant required the patient to submit to a full-blown independent medical examination (“IME”), thereby implying that the written claim submitted was at least prima facie sufficient.
Defendant also alleges that certain bills are not payable since they were never received by the Defendant. Plaintiff replies (and moves for summary judgment regarding the defense) that said bills are not part of the subject lawsuit.
Conclusions of Law:This Court agrees with the Plaintiff that the Defendant, through its own actions (i.e., 1. failing to provide an Explanation of Benefits alerting Plaintiff of the alleged defect; and, 2. continuing to proceed with an I.M.E. as if no prima facie defect in the claim existed), results in a waiver of Defendant’s right to assert strict compliance with F.S. s. 627.736(5)(d). See United Auto Ins. Co. v. Mary Brown, 15 Fla. L. Weekly Supp. 893b (Broward County Circuit Court, in its appellate capacity, 2008).
Moreover, the proper record evidence before this Court demonstrates that the bills Defendant claims it has not received are not part of the subject lawsuit.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is DENIED and Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
