15 Fla. L. Weekly Supp. 618b
Insurance — Personal injury protection — Notice of loss — HCFA claim form — Waiver — Insurer’s issuance of partial payment and denial of balance of claim on grounds other than omission of professional license number from HCFA claim form showed intent to accept HCFA form as sufficient notice of covered loss — Insurer waived right to raise defective HCFA form as statutory bar to payment
FINLAY DIAGNOSTIC CENTER, INC., a/a/o ISABEL HERNANDEZ, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 05-05005 SP 26 (02). April 3, 2008. Robin Faber, Judge. Counsel: Maria E. Corredor, Law Offices of Maria E. Corredor, Miami. Maury Udell.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT RE: BOX 31
This cause having come before the Court on, Plaintiff’s, FINLAY DIAGNOSTIC CENTER, INC.’s, a/a/o ISABEL HERNANDEZ, Motion for Partial Summary Judgment and Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY’S Motion for Final Summary Judgment, Re: Box 31 and the Court having reviewed the respective Motions and Responses to the Motions of both parties, having reviewed evidence filed and of record, including responses to discovery, deposition transcripts and affidavits filed in support/opposition to said respective Motions for Summary Judgment, having heard argument of counsel and being otherwise fully advised in the premises herein, finds as follows:
Findings of Fact:
1. This is a lawsuit wherein Plaintiff, a medical provider that provided diagnostic x-ray testing to the Claimant, ISABEL HERNANDEZ, seeks payment for services rendered.
2. On or about April 21, 2005, ISABEL HERNANDEZ, allegedly sustained personal injuries as a result of an automobile accident; Plaintiff’s claim in this case is based upon it maintaining that the services billed by Plaintiff were reasonable, necessary and related to the treatment of ISABEL HERNANDEZ as a result of the injuries allegedly sustained in said motor vehicle accident. Regardless of the issues raised in the parties’ cross motions for Summary Judgment on the issue of Box 31, Defendant maintains and Plaintiff does not dispute that it remains Plaintiff’s burden to prove as part of its prima facie case that the at-issue services are/were in fact reasonable, necessary and related to the subject motor vehicle accident.
3. At the time of the accident, Ms. Hernandez, had an active automobile insurance policy with the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, which provided personal injury protection benefits totaling $10,000 in accordance with Florida Statute §627.736.
4. On or about May 5, 2005, Ms. Hernandez executed an Assignment of Benefits (“AOB”) to Plaintiff for medical services rendered.
5. Defendant did tender a partial payment of the No-Fault benefits claimed by Defendant within thirty (30) days as required by F.S. §627.736(4)(b). With said partial payment, Defendant provided to Plaintiff an explanation of benefits (EOB) wherein it advised that the Plaintiff’s bills were paid at a reduced amount (i.e. 200% of the applicable Medicare Fee Schedule). No other reason for the reduction/non-payment of Plaintiff’s bill was provided on the EOB.
6. Thereafter, Plaintiff, in compliance with Florida Statute 627.736(11) sent to Defendant a Pre-suit demand letter placing Defendant on notice of the fact that it was claiming the balance of its bill (i.e. the difference between what Plaintiff had billed for the services vs. the amount allowed and paid by Defendant).
7. In response to the Pre-suit demand letter, the Defendant sent to Plaintiff, through its counsel, a response to the Pre-suit demand letter, wherein it advised Plaintiff that it was standing by its decision to issue no additional payments to Plaintiff (based upon its having reduced and paid Plaintiff’s bill per 200% of the Medicare Fee Schedule), and further directing Plaintiff to, and including a copy of, the EOB that had been previously provided to Plaintiff. Again, Defendant did not address any alleged deficiency in the HCFA/claim form as a basis for the denial/nonpayment of the Plaintiff’s bill.
8. On or about September 19, 2005, the Plaintiff filed this action to compel payment of the balance of Plaintiff’s medical bills then due and owing.
9. On or about June 11, 2007, the Defendant, through its Answer, for the first time alleged as an Affirmative Defense that Defendant has not been furnished with written notice of a covered loss because Box 31 on the HCFA form did not contain the “professional license number of the medical provider/technician. . .treating physician’s or billing officer’s license number.”
Conclusions of Law:
The Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes (2003), which was enacted in 1971, was intended to provide a minimum level of insurance benefits without regard to fault. See § 627.731, Fla. Stat. (2001); United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001). Under this statutory scheme, each driver collects certain statutorily required medical, disability, or death benefits regardless of fault. See Mansfield v. Rivero, 620 So.2d 987 (Fla. 1993). In order to be entitled to PIP benefits, a party seeking benefits must establish that an insurer was provided written notice of a covered loss. Section 627.736(4)(b), Fla. Stat., states in relevant part: “[p]ersonal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” The courts of Florida have a longstanding policy construing provisions of the Florida No-Fault Act liberally in favor of the insured. That policy is a broader and more liberal standard as applied to the PIP statute in particular. Race v. Nationwide Mutual Fire Insurance Co., 542 So.2d 347 (Fla. 1989).
The parties do not dispute that Box 31 of the HCFA does not include any license number. In the instant case the Plaintiff argued that it had substantially complied with the requirements of Fla. Stat. 627.736(5)(d) in that it provided complete copies of all of the licenses, whose number could have possibly appeared on Box 31 of the HCFA in this case, at the time that the Plaintiff presented its claim to Defendant for payment. The Defendant’s Litigation Adjuster testified that copies of the actual licenses (rather than just a number) were in fact received by Defendant prior to it issuing payment. Additionally, Plaintiff argued that the “mere deficiency” of it not having placed a license number in Box 31 of its HCFA did not in any way affect the insurer’s ability to process the claim.
Fla. Stat. 627.736(5)(d) states that “an insurer shall not be considered to have been furnished with notice of [a covered] loss or medical bills due unless the statements or bills are properly completed in their entirety as to all material provisions” (emphasis added). In Dr. Rami J. Toueg (a/a/o Nery Pineda) v. United Auto. Ins. Co., (17th Jud. Cir., Broward County Ct., opinion dated August 1, 2006), the court considered the statutory definition of “properly completed” as intended by the Legislature to mean “providing truthful, substantially complete, and substantially accurate responses” (emphasis added). The Court further cited to a treatise explaining that “if [an] insurer has all of the information needed to process the claim, or [has] agreed to accept the information, the bill is ‘properly completed.’ ” Id. Finally, the Court looked to the construction of the term “substantial completion” and found that it indicated that “a court should overlook mere technical deficiencies and instead look at whether the party is provided with all material information necessary to permit clear review.” Id.
In more recent cases, courts have found that despite the language of Fla. Stat. 627.736(5)(d), the provision of a signature in Box 31 of the HCFA form is not a requirement under Florida law and thus it is not a valid defense that can be raised by the insurer. AFO Imaging, Inc. (a/a/o Maritza Donoso) v. United Auto. Ins. Co., 13th Jud. Cir., Hillsborough County Court, opinion dated October 3, 2006) [13 Fla. L. Weekly Supp. 1212a] (holding that defendant did not have a valid defense on grounds that the medical provider had not provided a signature in Box 31 of the HCFA form, because Florida law, pursuant to Fla. Stat. 627.736 imposes no such requirement). Most recently, in Finlay Diagnostic Center, Inc., (a/a/o Margaret M. Espina) v. United Auto. Ins. Co., 11th Jud. Cir., Miami-Dade County Court, Judge Lawrence D. King, November 6, 2006), the court denied defendant’s motion for final summary judgment and granted plaintiff’s cross-motion for same finding that plaintiff substantially complied with the requirements of Fla. Stat. 627.736(5)(d) by providing, through attachments, complete copies of the provider’s professional licenses). Additionally, in Asclepius Medical, Inc. (a/a/o Eliset Hernandez) v. Progressive Express Ins. Co., (11th Jud. Cir., Miami-Dade County Court, Judge Nuria Saenz, November 29, 2006), Judge Saenz denied defendant’s Motion for Summary Judgment regarding the insufficiency of information in Box 31 of HCFA. See also Amedicare Rehab Center, Inc. (a/a/o Jose Rodriguez) v. Progressive Express Ins. Co. (11th Jud. Cir., Miami-Dade County Court, Judge Ana Maria Pando, October 9, 2007) and Kendall South Medical Center (Nelson Esteves) v. United Auto. Ins. Co. (11th Jud. Cir. Miami-Dade County Court, Judge Robin Faber, October 23, 2007) [15 Fla. L. Weekly Supp. 91b].
In response, to Plaintiff’s arguments regarding substantial compliance, Defendant argued that 627.736(5)(d)’s language is clear and unambiguous and therefore the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. If the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So.2d 299 (Fla. 4th DCA 2000). Moreover statutes should not be interpreted in a manner that would deem the legislative action useless. U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101, 1104 (Fla. 3d DCA 2000). The primary source for determining legislative intent when construing a statute is the specific language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1150 (Fla. 2000). Defendant argues that therefore, the use of the term “shall” in Fla. Stat. 627.736(5)(d), clearly conveys the mandatory requirement intended by the legislature in enacting the statute.
The Defendant presented for the Court’s consideration various cases wherein other trial Courts have held in favor of the Defendant on the issue of Box 31 and requirement that Plaintiff comply with conditions precedent including, Trans Imaging Diagnostic Medical Center v. U.S. Security Ins. Co. (11th Jud. Circ. Miami-Dade County Court, Judge Bronwyn Miller, May 2005); O.P. Diagnostic Center a/a/o Osvel Cancio v. U.S. Security, 12 Fla. L. Weekly Supp. 483b, (11th Miami-Dade County Court, Judge Lawrence King, January 5, 2005); Finlay Diagnostic a/a/o Manuel Alcoser v. Progressive American Ins. Co., 13 Fla. L. Weekly 610b (11th Miami-Dade County Court, Judge Nuria Saenz, January 31, 2006). Additionally the Defendant relied on the case of Radiology & Neurology Consultants, Inc. v. Progressive, 12 Fla. L. Weekly Supp. 754b (17th Jud. Cir. February 2005) where Judge Jeffrey Streitfeld in construing the 1999 PIP statute held that an incomplete HCFA is legally insufficient to place an insurer on notice of a loss or amount of same.
The Plaintiff argued, in the alternative, that even if the Court were to find that the Plaintiff did not “substantially comply” with the requirements of Fla. Stat. 627.736(5)(d) that the Defendant’s conduct in this particular case acted as a waiver of its right to object or otherwise claim as a basis of denial of Plaintiff’s claim the alleged deficiency in the HCFA. In support of the “waiver argument” the Plaintiff presented the following evidence: 1. As confirmed through the adjuster’s deposition, the Defendant never advised Plaintiff at any time prior to the lawsuit being filed that the claim was denied because of the alleged deficiency in the HCFA (i.e. the missing license number in Box 31); 2. There was no record of any intent by the insurer to deny benefits based on the alleged deficiency in the HCFA (i.e. the missing license number in Box 31); 3. In fact, as Plaintiff points out, even after the suit first having been filed, in responding to discovery (Interrogatories) the Defendant did not include the alleged deficiency in the HCFA (i.e. the missing license number in Box 31) as one of the numerous basis for the alleged denial of the claim; 4. The Defendant issued payment (albeit partial payment as maintained by the Plaintiff) evidencing that it made a claims decision on this file; 5. The Defendant reduced the amount of PIP benefits available to Defendant’s insured by the amount of the partial payment, an action that Plaintiff argues, an insurer cannot take without first making a determination that the Plaintiff’s bills were in fact a covered loss that it had been placed on sufficient notice thereof.
In response, Defendant argued to the Court that the classic definition of waiver is the “voluntary and intentional relinquishment of a known right,” Raymond James Fin. Svcs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005), and that Plaintiff failed to present any evidence to support its contention that Defendant waived the requirement that Plaintiff comply with statutory conditions precedent. Defendant argued that its position was supported by Fla. Stat. 627.736(4)(b)(2003), which provides (in relevant part) that with regards to a violation of subsection (5): “Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.” Additionally, Defendant argued that after engaging the power of the Court system, Plaintiff should be held to its burden of proof and required to prove each and every element of its case including compliance with and statutory conditions precedent. See generally Derius v. Allstate Indem. Co., 723 So.2d 271 (Fla. 4th DCA 1998), rev. denied, 719 So.2d 892 (Fla. 1998).
In Consuelo D. Alzate vs. United Auto Insurance Company, 11 Fla. L. Weekly Supp. 878a (11th Judicial Circuit, July 20, 2004), the court dealt with a waiver issue in regard to a right to employ the statutory bar to payment:
“The court also finds that United Auto waived enforcement of the statutory time limit by its conduct. Waiver is ‘the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.’ Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003). If United elected to deny benefits based upon the untimeliness of the bills, it should not have continued to investigate the accident after having received the ‘untimely’ bills . . . Such conduct does not evince an intent to deny all bills based upon untimeliness, in fact, it demonstrates an intent to pay the bills after concluding its investigation. These actions waived its right to employ the statutory bar to payment due to the untimeliness of the bills. Accordingly, we reverse the lower court’s granting of the JNOV.”
An insurer can waive its right to employ a statutory bar to payment. Plaintiff’s Reply of Waiver to Progressive’s Affirmative Defense of a defective/incomplete HCFA has merit and in this case there is no question of fact to consider. Progressive never intended to raise the alleged defective/incomplete HCFA (Box 31) as a bar to payment. Their conduct in issuing partial payment and denying the balance claimed by Plaintiff as remaining due and owing, on grounds other than the alleged deficiencies in the HCFA (Box 31), is clear and uncontroverted evidence of their intent to accept Plaintiff’s notice as sufficient notice of a covered loss, thereby waiving their right to employ this statutory bar to payment.
Because the Court finds that the Defendant waived its right to raise the alleged defective/incomplete HCFA (Box 31) as a statutory bar to payment, the Court does not rule on Plaintiff’s first argument of “substantial compliance,” presented in support of its Motion for Partial Summary Judgment regarding Box 31.
ORDERED and ADJUDGED:
For the reasons set forth above the Defendant’s Motion for Summary Judgment on its Affirmative Defense of the defective/incomplete HCFA (Box 31) is DENIED and Plaintiff’s Cross-Motion for Summary Judgment on the same issue because of and regarding its Reply of Waiver is GRANTED.
