15 Fla. L. Weekly Supp. 1233a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Failure to use state-mandated D&A form and use of alternate form instead does not preclude payment of PIP benefits
EXCELSIOR HEALTH CLINIC, INC., as assignee of Jean Benoit, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05-SC-3645. October 15, 2008. Donald L. Marblestone, Judge. Counsel: Maria DiBlasio Hale, Orlando. George Milev, Orlando.
ORDER DENYING DEFENDANT’S AMENDED MOTION FOR SUMMARY FINAL JUDGMENT AND MOTION FOR PROTECTIVE ORDER
THIS MATTER having come before this Court on Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order with the parties represented by counsel and this Court having reviewed the motion, the Plaintiff’s response, the statute and the law and heard argument of counsel and being otherwise fully advised of the premises, it is hereby Ordered and Adjudged as follows:Undisputed Facts
1. The Plaintiff’s assignor had a policy of insurance with Defendant with Personal Injury Protection (PIP) coverage.
2. Plaintiff submitted bills for dates of service July 13, 2005 through August 15, 2005, for payment under the PIP policy.
3. Plaintiff sent a disclosure and acknowledgment form to Defendant on or about the same time as the initial date of service billing which included the standard HCFA/CMS 1500 form and the medical records for July 13, 2005. (See Plaintiff’s disclosure and acknowledgment form attached as Exhibit A.) [Editor’s note: exhibit omitted].
4. The disclosure and acknowledgment form sent to Defendant was not the form promulgated by the Legislature pursuant to Fla.Stat. 627.736(5)(e)(2)(7), (2005). (See disclosure and acknowledgment form promulgated by the Legislature attached hereto as Exhibit B.) [Editor’s note: Exhibit omitted.]
5. The Defendant reduced and/or denied payment based upon reasons other than the alleged failure to submit the appropriate disclosure and acknowledgment form.
Issues
6. Defendant filed its Amended Motion for Summary Final Judgment and Motion for Protective Order claiming that the Plaintiff failed to comply with the mandates of Florida Statute 627.736(5)(e)(2)(7) and thus the failure precludes payment for all dates of service under the policy of insurance.
7. Plaintiff argues the Defendant waived its right to and is estopped from challenging compliance by accepting the disclosure and acknowledgment form and paying benefits prior to the filing of the lawsuits. It further argues that the disclosure and acknowledgment form is not a “billing requirement” and/or a “notice requirement” which is a prerequisite for payment under the PIP statute. Thirdly, even if it was not the form utilized by the Legislature, it substantially complied with the plain meaning of the statute and/or would only apply to the first date of service of July 13, 2005. Lastly, the statute does not provide a remedy for failure to comply with Fla. Stat. 627.736(5)(e)(2)(7) and/or 627.736(5)(e)(1) (2005).
Legal Analysis
Although the form promulgated by the Legislature was not utilized by the Plaintiff, the Plaintiff’s disclosure and acknowledgment form substantially complied with the intent of the form that the Legislature created. If this Court were to interpret the statute to read that any noncompliance of Subsection 5 would entitle a Defendant to summary judgment, even after they pay a portion of the claim, then the use of 8 or 10 point type instead of 12 point type, as required by the statute (§627.736(5)(c)(4) (2005)), would allow for a summary judgment. If read in pari materia, no Legislature could have intended this result. It is not in the spirit and intent of the law to preclude payment under this scenario.
The purpose of the statute was to prevent fraud and to put the insurer on actual notice that the provider rendered the services and what the services were by way of the HCFA/CMS 1500 forms and accompanying medical records.
Thus, the failure to provide the State mandated disclosure and acknowledgment form, and providing instead an alternate form, does not preclude payment of PIP benefits under the Florida Motor Vehicle No-Fault Law. As such, Defendant’s affirmative defense on this issue fails.
It is therefore Ordered and Adjudged that Defendant’s Amended Motion for Summary Final Judgment and Motion for Protective Order is DENIED.
