15 Fla. L. Weekly Supp. 611a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Failure to submit — Where medical provider failed to submit D&A form to insurer prior to insured filing suit, insurer was never placed on notice of covered loss, and claim was never overdue and is legal nullity — No prejudice to insured because, where provider fails to comply with legal requirement to submit bill, neither insurer nor insured is responsible for payment — No merit to argument that failure to provide D&A form impacts only initial date of service, not entire claim
PAUL MITCHELL, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2006-SC-7897, Division C. April 1, 2008. Brent D. Shore, Judge. Counsel: Nicholas A. Zacharewski, Jacksonville Beach, for Plaintiff. James B. Eubanks, Rinaman and Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY DISPOSITION RE: FAILURE TO PROVIDE A DISCLOSURE AND ACKNOWLEDGMENT FORM
THIS CAUSE, came before the Court on March 20, 2008 for hearing of the Defendant’s Motion for Summary Disposition Re: Failure to Provide a Disclosure and Acknowledgment Form. Present before the Court appeared counsel for Plaintiff, Nicholas Zacharewski, Esquire, and counsel for Defendant, James B. Eubanks, Esquire. Having heard arguments of counsel, reviewed the pleadings, motions and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. On or about September 21, 2006, Plaintiff, Paul Mitchell, filed this case sub judice, regarding non-payment of No-Fault benefits for alleged services rendered to the insured by M.W. Kilgore, II, M.D., P.A. from June 29, 2005 through May 1, 2006. See Paragraphs 5 and 10 of Plaintiff’s Complaint.
2. On or about March 1, 2007, Plaintiff filed a Motion to Amend the Complaint to add January 30, 2006; February 7, 2006; February 20, 2006; and March 7, 2006 as dates of service at issue allegedly provided by Jacksonville Spine Center.
3. However, it is uncontested, Jacksonville Spine Center has failed to provide Defendant with written notice of the fact of a covered loss pursuant to FLA. STAT. § 627.736(4)(b) and therefore, failed to state a cause of action.
4. FLA. STAT. §627.736(4)(b) states, in pertinent part: “Personal 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 . . . .” “This paragraph does not preclude or limit the ability of the insurer to assert that the claim was. . .in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim . . . .” (emphasis added)
5. FLA. STAT. § 627.736(5)(e) requires, inter alia, that “At the initial treatment or service provided, each physician . . . providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person . . . to execute a disclosure and acknowledgment form . . . ”and ” . . . the form shall be furnished to the insurer pursuant to paragraph (4)(b) . . . .” (emphasis added)
6. Jacksonville Spine Center, never submitted a ‘Standard Disclosure and Acknowledgment Form’ to Defendant. See Affidavit of Timiko Gibson in support of the same.
7. The statutory language is clear and unambiguous, the standard form promulgated by the Department of Financial Services must be used, and in such, the services provided must be stated on the form. The legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th Dist. Ct. App. 2000).
8. Other courts construing FLA. STAT. § 627.736(5)(e)(1), have stated that, “the Legislature has made the disclosure and acknowledgment form part of the claims process.” Polina Nosel v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 1190a (Fla. 17th Judicial Circuit, Broward Cty., October 17, 2005). See also O.P. Diagnostic Center v. U.S. Security Ins. Co., 12 Fla. L. Weekly Supp. 483b (11th Judicial Circuit, Miami-Dade Cty., February 16, 2005).
9. This Court previously ruled, in Jason Martin v. Progressive Auto Pro Insurance Company, 14 Fla. L. Weekly Supp. 394a (4th Judicial Circuit, Duval Cty., February 2, 2007),
The original standard disclosure and acknowledgment form was not submitted to Defendant prior to the filing of this suit in violation of FLA. STAT. § 627.736(5)(e)(5). The Defendant was never placed on notice of the claim as a matter of law. FLA. STAT. § 627.736(4)(b). The disclosure and acknowledgment form requirements are mandatory and an integral part of the claim process. The statutory procedures for placing the Defendant on legal notice of the claim were not satisfied, and the claim was not lawfully presented to Defendant. The claim was never overdue, and is a legal nullity. Defendant’s Motion for Summary Disposition is granted as a matter of law.
10. Plaintiff attempts to argue that the statutory language of Florida Statute § 627.736(4)(b) does not grant Defendant the ability to assert that a claim was in violation of subsection (5). Instead, it is argued by Plaintiff, that the relevant part of subsection (4)(b) only allows for an assertion that the amount of the charge was in excess of that permitted under subsection (5). Defendant correctly states that the Legislature was thoughtful and meticulous when detailing the statutory requirements of Florida Statute § 627.736(5)(e), which outline the minimum requirements of a properly executed Disclosure and Acknowledgment Form and make reference to subsection (4)(b). This Court follows NW Broward Orthopaedic Associates, P.A. and MRI Radiology Network, P.A. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 740a (17th Judicial Circuit, Broward Cty., May 11, 2006) in finding that Plaintiff’s limited interpretation would render the Legislature’s reference to (4)(b) in subsection (5)(e) meaningless. “Courts are not to presume that a given statute employs “useless language.” Johnson v. Feder, 485 So.2d 409 (Fla. 1986). Courts must instead “construe related statutory provisions in harmony with one another”. Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 455 (Fla. 1992).
11. This Court is not persuaded by Plaintiff’s argument that the insured, Paul Mitchell, would be unjustly left responsible to Jacksonville Spine Center for any unpaid bills due to the medical provider’s mistake. Any potential lien would be unenforceable pursuant to Florida Statute § 627.736(5)(b)(1)(b), which clearly states, in pertinent part:
(b) 1. An insurer or insured is not required to pay a claim or charges:
b. For any service or treatment that was not lawful at the time rendered;
12. In North Florida Medical Clinic, Inc. v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 689b (4th Judicial Circuit, Duval Cty., May 1, 2007), the Court found no prejudice to the insured, because where the medical provider has not complied with the legal requirements to submit the bill, neither the insurer, nor the insured are responsible for payment.
13. Plaintiff argues, in the alternative, that if Progressive is successful in its Motion, that Florida Statute § 627.736(5)(e)(9) precludes subsequent dates of service, after the initial treatment, from being affected.
14. Florida Statute § 627.736(5)(e)(9) states, in pertinent part: “The requirements of this paragraph apply only with respect to the initial treatment of service of the insured by a provider. For subsequent treatments or service, the provider must maintain a patient log. . .” In Jason Martin v. Progressive Auto Pro Insurance Company, 14 Fla. L. Weekly Supp. 394a (4th Judicial Circuit, Duval Cty., February 2, 2007), this Court correctly interprets this statute and ruled that “Florida Statute § 627.736(5)(e)(9) merely provides that the requirements of completing the form only apply to the initial treatment. The intent of the section is further demonstrated by the next sentence which requires the patient to sign a patient log on subsequent visits. The section does not address any penalty for failing to comply with the statutory requirements.” Rather the intent of this section is merely to set forth a separate requirement of the medical provider in maintaining a subsequent patient log, and establish that a Disclosure and Acknowledgment Form need not be completed for subsequent dates of service.
15. Legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th Dist. Ct. App. 2000). Therefore, this Court is unwilling to reach beyond the plain, unambiguous language of the statute and speculate as to a penalty, as Plaintiff seeks.
16. Despite Plaintiff’s various arguments, the adoption of the arguments would circumvent the clear language of the statute, and this Court cannot excuse a clear violation of Florida Statute §§ 627.736(4)(b), (5)(e).
17. There are no genuine triable issues of fact. The evidence is clear that Jacksonville Spine Center did not furnish a Disclosure and Acknowledgment Form to Defendant, in violation of FLA. STAT. § 627.736(5)(e) and; therefore, did not provide Defendant with written notice of the fact of a covered loss pursuant to FLA. STAT. § 627.736(4)(b) and has failed to state a cause of action.
Therefore, it is;
ORDERED AND ADJUDGED:
The Defendant’s Motion For Partial Summary Disposition re: Failure To Provide a Disclosure and Acknowledgment Form is GRANTED.
