15 Fla. L. Weekly Supp. 947a
Insurance — Personal injury protection — Explanation of benefits — Insurer’s letter to medical provider stating that bills were not compliant with section 627.736(5) does not refute charge that insurer failed to provide EOB where evidence was untimely filed, and letter is not legally sufficient itemized specification of unpaid charges — Claim that insurer was not furnished with notice of covered loss because HCFA forms were not properly completed fails where evidence was untimely filed, and forms were properly completed — Assignee/medical provider may maintain action to determine or enforce right to copy of insurance policy and declarations page under section 627.4137 — No merit to argument that insurer was relieved of obligation to provide documents because request cited wrong statute — Request for denial of motion for partial summary judgment or continuance due to outstanding discovery is denied where discovery at issue would not change pertinent facts
DADE INJURY REHABILITATION CENTER, a Florida Corporation (assignee of Mahammed, Delroy), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-15832 COCE 54. June 26, 2008. Lisa Trachman, Judge. Counsel: Russel Lazega and Aura Brooks, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Amy Cohen, Law Offices of Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I (EOB); COUNT II BREACH OF CONTRACT (DECLARATION PAGE) and COUNT III BREACH OF CONTRACT (INSURANCE POLICY)
THIS CAUSE came before the Court for hearing on Plaintiff’s Motion for Partial Summary Judgment as to Counts I, II & III, and the Court upon consideration of all matters finds as follows:
Background: This is a P.I.P. case. Plaintiff has moved for Partial Summary Judgment as to Counts I, II, and III of the Complaint (Claiming: 1) Breach of Contract for failure to provide an Itemized Specification of Unpaid Charges (commonly called an Explanation of Benefits or “EOB”); 2) Breach of Contract re: Policy Declaration Page and 3) breach of contract re: a copy of the insurance policy).
Plaintiff (through counsel) submitted a pre-suit demand letter to Defendant requesting an explanation of benefits and a copy of the insurance policy and declarations information. It is not disputed by record evidence that the Defendant did not provide a copy of the insurance policy and declarations information and instead, Defendant responds that pursuant to Southern Group Indem., Inc. v. Humanitary Health Care, Inc., No. 3D06-2788 (Fla. 3rd D.C.A., 2007) [32 Fla. L. Weekly D1396a], Defendant was not obligated to provide an explanation of benefits, policy or declarations information as these are documents that are “internally prepared” by the insurer. Additionally, Defendant responds that Plaintiff failed to request the policy and declarations information under 627.4137 (instead, citing F.S. s. 627.736(6)(d) as the basis for the request).
As to the Explanation of Benefits count, Defendant responds that it provided a sufficient EOB by sending a letter stating that Plaintiff’s bills were not compliant with Florida Statue s. 627.736(5). Defendant further contends that Plaintiff failed to give proper notice of a covered loss by not completing boxes 32, 17, and 17a of the HCFA forms. Lastly, Defendant opposes Partial Summary Judgment as to all counts citing that discovery is not complete. Addressing each count in turn:
Count I — Failure to provide Explanation of Benefits (EOB).
It is well settled that a medical provider may maintain a cause of action for breach of contract for failure to provide a proper EOB and that attorney’s fees and costs are awardable to the prevailing assignee medical provider in such an action. United Auto. Ins. Co. v. R.J. Trapana, M.D., P.A. (Decision of the Honorable Richard Eade) Circuit Court, Broward County (Appellate), 12 Fla. L. Weekly Supp. 452a (2005) Review Denied by 4th District Court of Appeal; United Auto. Ins. Co. v. Stat Technologies, Inc., 12 Fla. L. Weekly Supp. 840d (Decision of Judge John Luzzo (Appellate), Circuit Court, Broward County 2005).
Defendant maintains that it furnished the Plaintiff with an adequate explanation of benefits via a letter stating that the Plaintiff’s bills were not compliant with Florida Statute s. 627.736(5). The purported evidence was filed the day of the hearing and is untimely. Moreover, even if the court were to consider the letter it is not a legally sufficient itemized specification of unpaid charges (EOB) as it does not itemize the charges denied, nor does it specify which of the many provisions of F.S. s. 627.736(5) apply to this claim. Put plainly, an “itemized specification” must “itemize” the charges and state with “specificity” the basis for non-payment or reduction.
As to the Defendant’s claim that the insurer was not furnished notice of a covered loss because the medical bills were not complete as to boxes 32, 17 and 17a of the HCFA forms, the court finds that this evidence is not properly before the court because of untimely filing. Moreover, even if the court were to consider the filings, the HCFA are properly completed. Specifically, the express language of Box 32 calls for that box (requesting location of service) to be completed if the service was done somewhere “other than home or office.” The provider’s office address is in box 33 and there is no evidence before the court to suggest that the services were done at any other location. As to Boxes 17 and 17a, these boxes call for the name and tax information of the referring physician. Plaintiff is the primary care physician. A primary care physician need not complete boxes 17 and 17a as that physician is generally the referring physician. As such, Defendant had notice of the loss and the court need not answer the “chicken or the egg question” of whether the insurer is required to furnish the statutory policy disclosure and EOB information if there has not been notice of a covered loss based upon disputed billing forms.
Counts II and III (Counts for Policy and Declarations Information):
This court agrees with the reasoning of the overwhelming majority of county and circuit courts that have considered the issue and finds that an assignee medical provider may maintain an action to determine or enforce its right to a copy of the insurance policy and policy declarations page under F.S. s. 627.4137. See, e.g., Integra Diagnostics v. Reliance Nat’l Ind., 8 Fla. L. Weekly Supp. 394c (County Court, Broward 2001); Florida Orthopedic Center, P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1234 (County Court, Broward 2006); Scott M. Jablon, D.C. v. United Auto. Ins. Co., 13 Fla L. Weekly Supp. 643c (County Court, Broward 2006); American Vehicle Ins. Co. v. Florida Emergency Physicians Kang & Assoc., P.A., 13 Fla. L. Weekly Supp. 973 (18th Circuit Appellate 2006); Rural Metro Ambulance v. Liberty Mut. Ins. Co., 11 Fla. L. Weekly Supp. 583a (County Court, Broward 2003).
The court is not persuaded by the argument that the insurer is somehow relieved of its obligation to provide the Plaintiff with a copy of the insurance policy and declarations page simply because the request for the disclosure information cited Florida Statutes s. 627.736(6)(d), instead of Florida Statute s. 627.4137. A close reading of Florida Statute s. 627.4137 makes clear that the party making the request for the policy and disclosure information need only request the information in writing — nothing more. Based upon the language of the statute a request for the policy disclosure information would be proper even if it failed to cite a statutory basis at all. For example, had the insured written a letter to the insurer stating simply: “please furnish me a copy of insurance policy,” the request would be valid — notwithstanding that no statute was cited.
Finally, addressing the Defendant’s arguments the Third District Court of Appeal’s decision in Southern Group Indem., Inc. v. Humanitary Health Care, Inc., No. 3D06-2788 (Fla. 3rd D.C.A., 2007) [32 Fla. L. Weekly D1396a] bars a claim for the above information, the court has reviewed Southern Group and finds that the holding speaks specifically to whether a provider may maintain a suit for a PIP log pursuant to Florida Statute s. 627.736(6)(d). This case does not claim a PIP log, nor is either claim proceeding under F.S. s. 627.736(6)(d). The Plaintiff relies upon completely different statutes — each of which contains mandatory language requiring insurers to furnish the information at issue. As to the request for denial or continuance based upon there being outstanding discovery, the court finds that the discovery in question would not alter the facts in question here. It appears uncontroverted that the insurer did not furnish the policy or declarations page and that the only purported EOB is the non-itemized letter merely citing F.S. s. 627.736(5). The court questions how further discovery could change these facts.
ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is GRANTED. Summary judgment is entered in favor of Plaintiff as to Counts I, II, & III of the complaint. Plaintiff is the prevailing party as to Counts I, II & III and pursuant to Florida Statute 627.428, is entitled to recover from Defendant attorney’s fees and costs as to these counts (in an amount to be determined at a later hearing for which this court reserves jurisdiction). The court will withhold entry of judgment as to these counts pending completion of the Plaintiff’s deposition. Should the deposition uncover material facts pertinent to the issues of this motion the court will entertain vacating this order.
