15 Fla. L. Weekly Supp. 1007b
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form requirement applies to initial date of service only — On insurer’s motion for summary judgment, it is insurer’s burden to present evidence that patient logs for subsequent dates of service were not maintained, not medical provider’s burden to prove logs were maintained — Where insurer sent generic explanation of benefits that did not indicate that D&A form is defective, insurer is estopped from asserting D&A form defense
PREFERRED MEDICAL & REHAB., INC., Florida Corporation (assignee of Christina Garcia 2), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-27349 SP 23 (02). August 20, 2008. Caryn Canner-Schwartz, Judge. Counsel: Russel Lazega and Aura Brooks, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Reuven T. Herssein, for Defendant.
ORDER DENYING DEFENDANT’S MOTION OR SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on July 11, 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 and, accordingly, that Defendant has not been furnished with written notice of a covered loss.
In this case it is not disputed that the Plaintiff’s Disclosure & Acknowledgment Form was blank as to the services rendered.
Plaintiff responds that: 1) 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) and this circuit’s appellate decision in Reese King v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 430a (Dade Circuit Appellate 2008) and 2) that as to subsequent dates of service, the Defendant is estopped from asserting the defense because it failed to furnish Plaintiff with a proper explanation of benefits complaining of the alleged defect (citing as authority United Auto. Ins. Co. v. Adriana Amador, 15 Fla. L. Weekly Supp. 320a (Dade Circuit Appellate 2008).
Defendant responds that Plaintiff’s assertion of waiver does not apply because: 1) Florida Statute s. 627.736(4)(b) allows that insurer to raise the defense of non-compliance with F.S. s. 627.736(5) at any time, even after payment of the claim and 2) that the failure to submit a proper standard disclosure and acknowledgment form is not a curable defect as the statute requires the disclosure and acknowledgment form be done at the initial treatment or service. As such, Defendant argues the failure to submit a proper disclosure and acknowledgment form is fatal to all services submitted for the claim as the Defendant is not on notice of a covered loss under Florida Statute s. 627.736(4)(b).
Legal Conclusions:
Services After the Initial Treatment or Service:
The court follows the language of F.S. s. 627.736(5)(e)(9) and the decision in Reese King, supra, and finds that the disclosure and acknowledgment form requirement applies only as the initial treatment or service. Specifically, F.S. s. 627.736(5)(e)(9) states:
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, in chronological order by date of service, that is consistent with the services being rendered to the patient as claimed.
The court rejects the argument that it is Plaintiff’s burden on Defendant’s Motion for Summary Judgment to present record evidence the patient log described above was kept in this case. The Defendant has sought summary judgment as to all dates of service based upon an alleged failure to comply with F.S. s. 627.736(5)(e) and accordingly bears the burden to present proper evidence that the patient logs were not maintained. Defendant’s affidavit does not address patient logs at all but merely attests that the disclosure and acknowledgment form was blank as to the services.
The Initial Date of Service
As to the initial date of service, the Court is bound by this circuit’s decision in United Auto. Ins. Co. v. Adriana Amador, 15 Fla. L. Weekly Supp. 320a (Dade Circuit Appellate 2008), which held:
Clearly, United Auto was required by the statute to explain why they were denying Amador’s claim and to provide the information that it was taking that position due to the incomplete D & A Form. There is nothing in the record to indicate, nor does United Auto assert in any pleading, that this required EOB was ever sent to South Medical or Amador. The provision of an EOB by United Auto would have afforded Amador the opportunity of correct any alleged defects.
In this case, Progressive sent a generic explanation of benefits, which did not address the Disclosure and Acknowledgment issue. The circuit court’s decision in Amador indicates that the insurer has a duty to advise the provider that the disclosure and acknowledgment form is defective. The court finds that since there was not an EOB to Plaintiff indicating that the Disclosure and Acknowledgment form was defective and, therefore, Plaintiff was never afforded an opportunity to correct the defect, the Defendant is estopped from asserting the Disclosure and Acknowledgment defense. See Amador, supra.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is DENIED.
