15 Fla. L. Weekly Supp. 1227a

Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form that has not been properly authenticated, sworn to or certified is not admissible for purposes of summary judgment — Insurer that did not send explanation of benefits explaining that it was denying claim due to incomplete/defective D&A form and denied payment of bill in full on other grounds is estopped from asserting defect — D&A form requirement applies only to first date of service

LAKE WORTH EMERGENCY CHIROPRACTIC CENTER, PA as assignee of Clifford Riley, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07012140 COCE. June 26, 2008. Sharon L. Zeller, Judge. Counsel: Wendelyn L. Gowen, Orlando. Jonathan Brooks, Boca Raton.

ORDER

THIS MATTER having come before this Court on Defendant’s Motion For Summary Judgment and Plaintiff’s Response To Defendant’s Motion For Summary Judgment, and this Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. The document entitled “Standard Disclosure and Acknowledgment Form, Personal Injury Protection — Initial Treatment or Service Provided” (“D&A form”) which Progressive relies upon in its Motion For Summary Judgment has not been properly authenticated, sworn to or certified and is therefore inadmissible for purposes of a summary judgment. Bifulco v. State Farm Mutual Automobile Insurance Company, 693 So. 2d 707 (Fla. 4th DCA 1997).

2. Progressive was required by Florida Statute §627.736(4)(b) to explain why they were denying payment of the bills in full and to provide the information that it was taking the position due to the incomplete/defective D&A form. There is nothing in the record to indicate, nor does Progressive assert in any pleading, that this required Explanation Of Benefits form (“EOB”) was ever sent to the medical provider or patient. The provision of an EOB by Progressive would have afforded the Plaintiff the opportunity to correct any alleged defects. Based on these facts Progressive is estopped from asserting any defect in the D&A form. United Automobile Insurance Company v. Amador, 15 Fla. L. Weekly Supp. 320a (11th Jud. Cir. (Appellate) Miami-Dade County February 15, 2008).

3. Progressive waived their right to employ a statutory bar to payment when Progressive failed to advise the Plaintiff prior to the filing of this lawsuit that the claim was denied due to an incomplete/defective D&A form, when Progressive had no record evidence of any intent by Progressive to deny benefits based on an incomplete/defective D&A form; and finally when Progressive paid the bills at issue at 200% of Medicare. Progressive’s conduct in denying payment of the bills at 100% and instead paying the bills at 200% of Medicare, thus denying payment in full for the bills at issue on grounds other than the D&A form, is clear and uncontroverted evidence of Defendant’s intent to accept Plaintiff’s D&A form and waived their right to employ this statutory bar to payment. Kendall South Medical Center a/a/o Nelson Esteves v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 91b (11th Jud. Cir., Miami-Dade County, October 23, 2007); South Florida Physicians Group (Francisco Huerta) v. U.S. Security Insurance Company, 12 Fla. L. Weekly Supp. 173a (17th Jud. Cir., Broward County, October 11, 2004).

4. The “Standard Disclosure and Acknowledgment Form, Personal Injury Protection — Initial Treatment of Service Provided”document per Florida Statute §627.736(5)(e)(1) effects only the first date of service. “The requirements of this paragraph apply only with respect to the initial treatment or service of the insured by a provider. For subsequent treatments or service, the provider must maintain a patient log signed by the patient. . . .” Fla. Stat. §627.736(5)(e)(9); Reese King v. United Automobile Insurance Company, Case No.: 07-193 AP (11th Jud. Cir. (Appellate) Miami-Dade County, February 28, 2008) [15 Fla. L. Weekly Supp. 430a]; Kendall South Medical Center a/a/o Nelson Esteves v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 91b (11th Jud. Cir., Miami-Dade County, October 23, 2007); Juan Garcia v. United Automobile Insurance Company, Case No.: 05-1671 SP 24 (11th Jud. Cir., Miami-Dade County, September 12, 2006).

5. Based on the foregoing, Defendant’s Motion For Summary Judgment is hereby DENIED.