15 Fla. L. Weekly Supp. 996a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 92b
Insurance — Personal injury protection — Med Pay — Notice of loss — Disclosure and acknowledgment form — Submission of D&A form is not prerequisite to payment of PIP benefits — Accordingly, submission of D&A form is not billing requirement under Med Pay policy which provides that bills and statements for Med Pay coverage must be submitted in accordance with billing requirements applicable under PIP coverage
THEODORE P. VLAHOS, INC., d/b/a CENTER FOR ORTHOPAEDIC INJURIES AND DISORDERS, As Assignee of CHRISTINA JENKINS, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 07-11985-SC-44. July 9, 2008. Kathleen T. Hessinger, Judge. Counsel: Marc. B. Nussbaum, Reeder & Nussbaum, P.A., St. Petersburg, for Plaintiff. Stephen M. Lawler, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT
This Cause came before this Court on Defendant’s Amended Motion for Summary Judgment with the Parties represented by counsel and this Court having reviewed the motion, the statute and the law and heard argument of counsel and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows:Undisputed Facts
1. Plaintiff’s assignor had a policy of insurance with Defendant with Personal Injury Protection (PIP) and Medical Payments (Med Pay) Coverage.
2. Plaintiff submitted bills for dates of service April 30, 2007, May 22, 2007 and June 14, 2007, for payment under the Med Pay Coverage with Defendant.
3. Plaintiff sent a disclosure and acknowledgment form with the April 30, 2007 bill, but it did not list the description of services provided to Plaintiff’s assignor/Defendant’s insured.
4. Defendant denied payment of the bills due to the incomplete disclosure and acknowledgment form, thus Plaintiff filed suit against Defendant.Issues
5. Defendant filed its Amended Motion for Summary Judgment claiming that the Med Pay Coverage under the policy of insurance is payable in accordance to the Florida Motor Vehicle No Fault Law, i.e. PIP statutes; thus the failure to properly complete the disclosure and acknowledgment form precludes payment for all dates of service under the Med Pay coverage of the policy of insurance.
6. Plaintiff argues that the policy of insurance is ambiguous, failing to clearly state that the PIP statutes are applicable to the Med Pay coverage. It further argues that the disclosure and acknowledgment form is not a prerequisite for payment under the PIP statutes and, even if it was, it applies only to the initial bill of April 30, 2007.Legal Analysis
The policy of insurance, at issue in the matter, states, under the Medical Payments Coverage — Part B-2 (A)(3) as follows:
We will pay under this coverage only if bills and statements are submitted in accordance with the billing requirements that are applicable to claims submitted under PIP Coverage. (emphasis added)
The Personal Injury Protection Coverage — Part B-1 INSURING AGREEMENT — states, in pertinent part, “[w]e will pay, in accordance with the Florida Motor Vehicle No-Fault Law. . .” Plaintiff argues that under the plain reading of the Med Pay Coverage that the medical provider need only provide bills and statements for payment under Med Pay. Defendant argues that the bills and statements must be in accordance with the billing requirements applicable under the PIP Coverage. The PIP Coverage is payable in accordance to the Florida Motor Vehicle No-Fault Law which is §627.736, Fla. Stat. (2007). Defendant further argues that §627.736, Fla. Stat. requires Plaintiff to submit a properly completed disclosure and acknowledgment form in order to receive payment from the insurer. As such, this is part of the “billing requirements” referenced in the Med Pay Coverage.
The construction of an insurance policy is a question of law for the court and such contracts are interpreted in accordance with the plain language of the policy. Eagle Am. Ins. Co. v. Nichols, 814 So. 2d 1083, 1085 (Fla. 4th DCA 2002). The plain reading of the policy of insurance, in this matter, reflects that the Med Pay Coverage follows the PIP Coverage which, in turn, follows the no-fault law, §627.736, Fla. Stat. As such, the policy is not ambiguous and Med Pay Coverage ultimately follows §627.736, Fla. Stat. The significant legal issue that arises in this matter is whether §627.736, Fla. Stat. requires the submission of the disclosure and acknowledgment form, whether or not properly completed, as a prerequisite to payment by the insurer. Based on statutory interpretation, this Court finds that §627.736, Fla. Stat. does not require the submission of the disclosure and acknowledgment form as a prerequisite to payment of PIP benefits.
Pursuant to §627.736(4)(b), Fla. Stat., personal injury protection 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 and the amount of same. (emphasis added) If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. §627.736(4)(b), Fla. Stat. (2007). Section 627.736(5)(e)(1), Fla. Stat. (2007) states as follows,
At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment form, . . .
Defendant argues, and submits several county court cases stating the same, that the disclosure and acknowledgment form is the written notice required under §627.736(4)(b), Fla. Stat., thus PIP benefits are not payable if such form is not properly submitted. However, neither the plain language of the above quoted statute, nor any of its eight other subparagraphs, state the disclosure and acknowledgment form is written notice of the fact of a covered loss precluding payment if not submitted. It is a basic principle of statutory construction that courts are not at liberty to add words to statutes that were not placed there by the Legislature. Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001). This is particularly true when reviewing §627.736, Fla. Stat., as a whole, as the Legislature very clearly stated, throughout the statute, when the failure to comply with a requirement precluded payment or filing of a lawsuit.
Such is evident in §627.736(5)(d), Fla. Stat., which discusses the forms on which the bills from the medical providers must be submitted. This paragraph specifically states,
For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein. §627.736(5)(d), Fla. Stat. (2007).
This paragraph precedes the paragraph discussing the disclosure and acknowledgment form, §627.736(5)(e), Fla. Stat. Clearly, if the Legislature intended the submission of a disclosure and acknowledgment form to be a prerequisite to payment of PIP benefits then it would have stated it as clearly as it did when addressing the billing forms in §627.736(5)(d). This Court cannot read into the statute that which is not there.
Another example of the Legislature very clearly stating its intent, in the PIP statute, is set forth in §627.736(11), Fla. Stat. This paragraph states, “[a]s a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.” (emphasis added) §627.736(11)(a), Fla. Stat. (2007). This paragraph continues to address the requirements in the demand notice and how it should be mailed. The Legislature, in the above referenced paragraph, clearly stated its intent as to a condition precedent to filing a lawsuit, thus, this Court cannot read into §627.736(5)(e) a prerequisite to payment of PIP benefits when such is not stated.
Defendant cites orders from other county court jurisdictions that state that the language in §627.736(5)(e)(5), Fla. Stat. requires submission of the disclosure and acknowledgment form as a prerequisite to payment of PIP benefits. These courts cite to §627.736(5)(e)(5), Fla. Stat. as stating, “[t]he original completed disclosure and acknowledgment shall be furnished to the insurer pursuant to paragraph (4)(b). . .” See Polina Nosel, M.D., P.A.(a/a/o Renal Jean-Louis) v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 1190a (Broward Co. Ct. October 17, 2005); NW Broward Orthopaedic Assoc., P.A. (a/a/o Katrina Rodriguez) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 740a (Broward Co. Ct. May 11, 2006); Martin v. Progressive Auto Pro Ins. Co., 14 Fla. L. Weekly Supp. 394a (Duval Co. Ct. February 2, 2007); and N. Florida Medical Clinic (a/a/o Margaret Pryor) v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 689b (Duval Co. Ct. May 1, 2007). Using this language, these Courts ruled PIP payments are not due from the insurer without the provider providing the disclosure and acknowledgment form. However, §627.736(5)(e)(5), Fla. Stat. does not say such. It is actually being taken out of context as it is not being cited in its entirety. Section 627.736(5)(e)(5), Fla. Stat., states as follows,
The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished. (emphasis added) §627.736(5)(e)(5), Fla. Stat. (2007).
This subparagraph is merely a mailing provision. The form must be furnished to the insurer pursuant to the mailing provision set forth in paragraph (4)(b) and may not be electronically furnished. The mailing provision in paragraph (4)(b) requires the use of the United States mail in a properly addressed, postpaid envelope. §627.736(4)(b), Fla. Stat. (2007).
To interpret §627.736(5)(e)(5) to require the submission of the disclosure and acknowledgment form as a prerequisite to payment of PIP benefits then this Court would be adding words to the statute that were not placed there by the Legislature. Courts are not at liberty to do such. Seagrave, 802 So. 2d at 287. The departure from the letter of the statute is sanctioned by the courts only when there are cogent reasons for believing that the letter of the law does not accurately disclose the legislative intent. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). Moreover, this Court cannot interpret that the Legislature intended §627.736(5)(e)(5), Fla. Stat. to preclude payment of PIP benefits if the disclosure and acknowledgment form was not submitted when the Legislature specifically states its intent as to prerequisites to payment in other paragraphs of the PIP statute. As previously stated, the Legislature specifically stated in §627.736(5)(d), if the statements and bills were not completed pursuant to the statute, then the insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due. §627.738(5)(d), Fla. Stat. (2007). As such, if the Legislature wanted the submission of these disclosure and acknowledgment forms to be a prerequisite to payment then it would have put it in the statute.
The question remains as to why the Legislature would require the medical providers to submit the disclosure and acknowledgment form without providing a remedy for their failure to do so. It is not unusual for the Legislature to statutorily require a person or entity to do something without providing a remedy for the failure to do so. Section 83.49, Fla. Stat., part of the landlord/tenant statute, requires landlords to put money paid by tenants as security agreements in a non-interest or interest bearing account or post a surety bond, but does not have a remedy if the landlords fail to do such. §83.49, Fla. Stat. (2007). Section 713.015, Fla. Stat. requires any contract between a contractor and owner for improvements to a home, greater than $2,500.00, have specific language, set forth in a specific format; however, there is no remedy if the contractor fails to do such. These are only a couple examples of statutory requirements without a remedy for failing to do so. This Court does not have the authority to put a remedy where one does not exist. If the Legislature intended submission of this disclosure and acknowledgment form as a prerequisite to PIP payments then the appropriate remedy is for the Legislature to amend the statute. Seagrave, 802 So. 2d at 287.
Thus, the failure to provide the disclosure and acknowledgment form, or in this case, an incomplete form, does not preclude payment of PIP payments under the Florida Motor Vehicle No-Fault Law. Therefore, it is not a “billing requirement” under the Med Pay Coverage of the policy of insurance at issue in this case. As such, Defendant’s affirmative defense on this issue fails.
It is therefore Ordered and Adjudged that Defendant’s Amended Motion for Summary Judgment is DENIED.
