15 Fla. L. Weekly Supp. 393a
Insurance — Personal injury protection — Notice of loss — Disclosure and Acknowledgment form — Fact question as to whether insurer waived D&A form requirement by processing claim without raising objection or sending explanation of benefits concerning lack of form precludes summary judgment on D&A form issue as to initial date of service — Summary judgment is denied as to subsequent dates of service because D&A form requirement applies only to initial date of service
R & C FIRST MEDICAL CENTER, INC., Florida Corporation (assignee of Torres, Miriam), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-15013 COSO 61. February 13, 2008. Arlene Joy Simon, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Don Mathews, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on February 13, 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, the Plaintiff’s form inadvertently listed the Plaintiff’s name in the space for services rendered.
Plaintiff responds that Defendant waived the defense by failing to furnish a proper explanation of benefits complaining of the alleged defect and that, 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).
Legal Conclusions: The court finds that a fact question exists as to whether Defendant waived the disclosure and acknowledgment requirement by its conduct in processing the claim without raising proper objection or sending an explanation of benefits as to the issue. As such, summary judgment is denied as to this issue.
As to subsequent dates of service, the court denies summary judgment. The court finds that pursuant to Florida Statute s. 627.736(5)(e)(9), the standard disclosure and acknowledgment form requirement is required only for the first date of service and is not fatal to the entire P.I.P. claim.
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.
For dates of service after the initial treatment or service, the statute sets forth separate and distinct requirements — namely, a chronological patient log. Defendant has not established non-compliance with this provision.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is Denied.
