15 Fla. L. Weekly Supp. 923b
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where medical provider failed to submit proper D&A form, summary judgment is granted in favor of insurer as to first date of service only — Argument that insurer waived D&A form defense by failing to furnish proper explanation of benefits complaining of defect is inapplicable
DR. MARTIN A. GROSSMAN, D.C., Florida Corporation (assignee of Jean-Charles, Jemima), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 07-13714 CC 23 (01). July 17, 2008. Myriam Lehr, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Miguel Chamorro, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on June 26, 2008 on Defendant’s Motion for Summary Judgment alleging that the Plaintiff failed to submit a proper disclosure and acknowledgment form and that this failure is fatal to the Plaintiff’s claim. 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 P.I.P. case. Defendant seeks summary judgment as to all services alleging that the Plaintiff failed to submit a proper disclosure and acknowledgment form. Plaintiff responds that Defendant waived the defense by failing to furnish a proper explanation of benefits complaining of the alleged defect and that, at most, the disclosure and acknowledgment form requirement would only apply to the first date of service based upon the terms of Florida Statute s. 627.736(5)(e)(9).
Legal Conclusions: This court finds that pursuant to Florida Statute s. 627.736(5)(e)(9) the disclosure and acknowledgment requirement applies only to the first date of service (the statute is clear on its face). This circuit in its appellate capacity has applied this analysis. United Auto. Ins. Co. v. Amador, 15 Fla. L. Weekly Supp. 320a (Dade Circuit Appellate in its appellate capacity, 2008); King v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 430a (Dade Circuit Appellate in its appellate capacity, 2008). The Court grants summary judgment as to the first date of service only and denies as to the subsequent dates of service. The Court finds Plaintiff’s waiver argument inapplicable in this case.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is Granted in Part and Denied in Part. Specifically, the court grants partial summary judgment as to the Plaintiff’s first date of service. As to the remaining dates of service the court denies summary judgment based upon the specific language of Florida Statute s. 627.736(5)(e)(9) which provides that the disclosure and acknowledgment form requirement applies only to the first date of service.
