15 Fla. L. Weekly Supp. 190a
Insurance — Personal injury protection — Summary judgment — Affidavits — Notarization — Affidavits not signed in presence of notary are stricken — Failure to maintain patient logs and sign-in sheets is not fatal to medical provider’s claim where, although PIP statute requires that records be maintained, it does not make records part of claims process by requiring that provider submit records to insurer
TOTAL CARE CHIROPRACTIC VII, INC. d/b/a COAST CHIROPRACTIC (a/a/o Medilien Melus), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-198 COCE (53). December 17, 2007. Robert W. Lee, Judge. Counsel: Steven Lander, Fort Lauderdale, for Plaintiff. Sean Storani, Plantation, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on December 7, 2007 for hearing of Defendant’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
Background. On October 26, 2007, the Defendant served its Motion for Final Summary Judgment, the gist of which is that the Plaintiff failed to maintain patient logs and sign-in sheets as required by the Florida PIP law. The Motion was originally set for hearing for November 28, 2007, but later continued to December 7, 2007.
On December 5, 2007 at 1:08 p.m., the Plaintiff faxed to defense counsel two documents purporting to be affidavits opposing Defendant’s Motion for Summary Judgment. The Defendant objects to consideration of these documents for two reasons. First, they were not timely provided to Defendant as required by rule 1.510(c), and second, they were improperly notarized in violation of Florida Statute §117.107(9).
The Plaintiff responds that even if its affidavits are not considered by the Court, any deficiency in maintaining patient logs and sign-in sheets is not fatal to its claim.
Conclusions of Law. The Court need not consider the issue of timeliness under Rule 1.510(c) because the purported affidavits were not properly notarized. The evidence demonstrates that the “person whose signature is being notarized [was] not in the presence of the notary public at the time the signature [was] notarized,” as required by Fla. Stat. §117.107(9). Rather, the evidence revealed that the notary notarized a faxed signature. As a result, the Court strikes these purported affidavits and refuses to consider them.
The Court next considers the substantive issue, whether the failure to maintain patient logs and sign-in sheets is fatal to a claim for payment of PIP benefits. The pertinent statute provides as follows:
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.
Fla. Stat. §627.736(5)(e)(9).
The Defendant argues that the maintenance of patient logs and sign-in sheets is part of the claims process. Under Fla. Stat. §627.736(4)(b), an insurer is not obligated to pay a claim until it has been “furnished written notice of the fact of a covered loss.” In the Court’s view, the problem with Defendant’s argument is that the Defendant has been unable to point to anything in the PIP statute which requires a provider to submit these logs to the insurer as part of the claims process. This is unlike the required disclosure and acknowledgment form, which the Legislature has made part of the claims process. Cf. Fla. Stat. §627.736(5)(e)(5) (“[t]he original completed disclosure and acknowledgment form shall be furnished to the insurer”). Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED.
