15 Fla. L. Weekly Supp. 738a
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form that does not list services rendered on form but to which medical records and bills were attached substantially complied with statute — Defense of noncompliant D&A form was waived where insurer did not provide medical provider with response or explanation of benefits indicating form was noncompliant
RAPID REHABILITATION, INC., (Jacqueline Davis, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-004939 CONO 70. March 17, 2008. Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT (D&A)
THIS CAUSE came before the Court on February 11, 2008 for hearing on Defendant’s Motion for Final Summary Judgment and the Court having reviewed the Motion and entire court file; heard argument of counsel; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
Background:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits.
2. The claimant, Jacqueline Davis, received medical treatment from the Plaintiff as a result of injuries sustained in a motor vehicle accident.
3. The Plaintiff rendered medical treatment to the claimant from May 23, 2004 through September 1, 2004.
4. The Plaintiff submitted claims for insurance benefits, all of which were timely submitted and received by the Defendant.
5. Defendant failed to provide insurance benefits, a payout sheet and/or an explanation of benefits indicating to the Plaintiff any reason why its claims were not satisfied.
6. Plaintiff sent Defendant a demand letter on December 16, 2004. Defendant failed to either respond or address Plaintiff’s Demand Letter until the filing of their Answer and Affirmative Defenses on January 30, 2006, over one year later.
7. Defendant’s Fourth Affirmative Defense, contained in its Answer and Affirmative Defenses, states in relevant part, “. . .plaintiff has failed to comply with Florida Statute(s) 627.736(5)(e) which requires that at the initial treatment or service provided, any medical provider (other than hospitals) making a claim for PIP benefits require an injured person to execute a disclosure and acknowledgment form. . .”
8. The Disclosure and Acknowledgment form at issue was executed and countersigned by Jacqueline Davis on May 21, 2004, the date the Patient first received medical services from the Plaintiff. The form used was the standard form adopted by the Office of Insurance Regulation. The medical records and HCFA forms were attached to the Disclosure and Acknowledgment form at the time it was submitted to UNITED.
9. Plaintiff executed a sworn affidavit, in which he testified that, “Ms. Davis was informed, at the time of executing the Disclosure and Acknowledgment form, of the services rendered for which payment would later be claimed.” UNITED failed to provide any record evidence that contradicts the fact that the Patient was provided with an explanation of the services rendered.
10. Notwithstanding the absence of the services rendered from the actual form, the court finds the Disclosure and Acknowledgment form to be substantially compliant with the requirements of the statute.
11. South Miami Health Center a/a/o Lidia Gomez v. United Automobile Insurance Company,13 Fla. L. Weekly Supp. 619a (Fla. 11th Cir. Ct. Apr. 16, 2006), as in the instant matter, the plaintiff/provider contended that there was insufficient space on the form itself to provide an extensive list of the medical services rendered to the Patient. In Gomez, as in the instant matter, the plaintiff/provider correctly completed all the other portions of the form and attached medical reports and bills to the form.
11. The Court further finds that Defendant has waived this defense in that at no time did Defendant provide the Plaintiff with any response or explanation of benefits, indicating that said disclosure and acknowledgment form was not in compliance. Therefore, Plaintiff was not given the opportunity to address the Defendant’s reasons for nonpayment.
12. Pursuant to §627.736(4)(9)(f): if the insurer determines that it has been improperly billed, the insurer shall notify the insured.” Id.
13. The purpose of the no-fault statute is to provide swift, virtually automatic payment of automobile injuries without regard to fault. Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974); cited with approval in Amador v. United Auto. Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999); see also Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000).
14. The public policy behind the pre-suit demand requirement found within Section 627.736(11), Fla. Stat., is to permit a pre-suit investigation and to facilitate prompt resolution and settlement of claims, thereby avoiding litigation. Open MRI of Miami-Dade, Ltd. a/a/o Joseph Vincent v. Progressive Express Insurance Co., No. 049201 (Fla. 11th Cir. Ct. Dec. 25, 2005); See generally Patry v. Capps, 633 So.2d 9 (Fla. 1994); See also Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla. 1965).
Accordingly, it is
ORDERED AND ADJUDGED, that Defendant’s Motion for Final Summary Judgment be and the same is hereby Denied.
