15 Fla. L. Weekly Supp. 893b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 16 Fla. L. Weekly Supp. 33b
Insurance — Personal injury protection — Notice of loss — Claim form — Professional license number — Error to find that insured substantially complied with notice requirement despite failure to provide doctor’s professional license number on claim form — Waiver — Where, after receiving defective notice, insurer required insured to submit to examination under oath and independent medical examination and failed to alert insured to deficiency, trial court did not err in concluding that insurer waived right to dispute claim based on deficiency
Cert. denied January 16, 2009 (Fla. 4DCA)
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. MARY BROWN, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-11616 CACE 21, Consolidated with 07-22209 CACE 21. L.T. Case No. 05-7361 COCE 53. July 24, 2008. Counsel: Michael J. Neimand and Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel, Coral Gables. Dean A. Mitchell, Ocala, for Appellee.
OPINION
(CHERYL J. ALEMÁN, J.) THIS CAUSE comes before this Court, in its appellate capacity, upon the timely appeal by United Automobile Insurance Company (“United”) of the trial court’s March 23, 2007 order denying Appellant’s Motions for Summary Judgment and the trial court’s April 27, 2007 order granting Appellee’s Motion for Fees and Costs. Having considered the briefs of both parties, the record on appeal, the applicable law, including supplemental authority submitted, and the oral arguments, and being otherwise fully advised in the premises, this Court finds as follows:
The standard of review is that of“de novo.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d. 126, 130 (Fla. 2000). Utilizing a two-prong analysis, this Court must determine: 1) whether there exists any genuine issue ofmaterial fact, and 2) whether the moving party is entitled to judgment as a matter of law. Id.
The material facts in this case are undisputed. On December 25, 2004 Appellee/Insured, Mary Brown (“Ms. Brown”), was involved in an automobile accident. Ms. Brown sought and received treatment from Dr. Ken Hoder (“Dr. Hoder”) from January 11, 2005 through June 7, 2005.
Dr. Hoder submitted bills to United, but failed to place his medical license number on the claim forms. (R. 102; Supp. R. 29). United acknowledges receiving Dr. Hoder’s bills, (R. 102). Ms. Brown then paid Dr. Hoder and made a claim against United for reimbursement. United failed to respond with an Explanation of Benefits (“EOB”) declaring any defect in the claim and, instead, proceeded with an Independent Medical Examination (“IME”) and an Examination Under Oath (“EUO”). (See Supp. R. 24-26). Later, United denied Ms. Brown’s claim and she filed suit.
In its Motions for Summary Judgment, United alleged that Ms. Brown failed to meet a condition precedent for payment of the claim under § 627.736(5)(d) Fla. Stat. because Dr. Hoder submitted Central for Medicare and Medicaid Service (“CMS”) 1500 forms which were incomplete because they did not contain the doctor’s professional license number. (R. 75-105). The trial court denied the Motions, finding, as a matter of law, that Ms. Brown “substantially complied” with the notice provision of the statute and that, to the extent that there existed some technical non-compliance, United “waived” compliance with the notice provision of the statute. (R. 156).
United argues that the trial court erred, first, in applying the doctrine of “substantial compliance” to the instant case; and, second, in finding that United “waived” its right to enforce compliance with Section 627.736(4)(b), Fla. Statutes, by: (a) failing to alert Ms. Brown to the fact that her claim was technically deficient for omitting Dr. Hoder’s medical license number on United’s form which apparently provided no space for entering said number and, (b) by proceeding with an “IME” and “EUO”, thereby implying to Ms. Brown that the written claim she submitted was, at least, prima facie, sufficient.
As to the first issue of “substantial compliance,” this Court disagrees with the trial court. The supplying of the treating physician’s license number is a material provision of Florida Statutes, § 627.736(5)(d).
The statute’s apparent purpose is to ensure that medical services are provided by a licensed medical doctor and to guard against fraud. The statute is unequivocal that strict compliance with the requirement of a medical license number is necessary. Specifically, the statute states, in part: “[a]n 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.” § 627.736(5)(d), Fla. Stat.
This statute must be strictly construed. “It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language”. State v. Jett, 626 So. 2d. 691 (Fla. 1993). Strict statutory construction is the basis of at least one other court’s rejection of the doctrine of “substantial compliance” as applied to 627.736(11), Fla. Stat. See Chambers Medical Group, Inc. v. Progressive Express Insurance Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Circ. Ct. December 1, 2006).
As to the second issue of “waiver,” the trial court found that United “waived” the affirmative defense of “lack of notice” by requesting that Ms. Brown submit to an “IME” and an “EUO”. (R. 156; Supp. R. 22-24, 30, 31).
Waiver is “the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.” Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003).
The record in this case is clear that United received a “substantially compliant,” but legally insufficient, notice pursuant to § 627.736(5)(d), Florida Statutes. However, given the information that United did receive and its conduct after receipt of the claim, to wit: (a) compelling Ms. Brown to attend an IME and an EUO and (b) failing to alert Ms. Brown to the single omission of her physician’s license number from the required form, it was not error for the trial court to conclude that United’s actions throughout the claim process constituted the relinquishment of right to dispute the claim, for the mere failure to include her physician’s medical license number on a form.
United’s current claim relies upon an omission of a physician license number from a form, which omission was not alleged to have caused any prejudice whatever to United in its investigation of Ms. Brown’s claim. “The license number of the provider does not provide any information that the carrier needs to evaluate, investigate or pay a claim.” See World Health Chiropractic & Rehabilitation, Inc. v. Nationwide Property and Casualty Insurance Co., 12 Fla. L. Weekly Supp. 594b (2005). In the case at bar, there is no allegation that Dr. Hoder was not a duly licensed physician; there is no allegation of fraud.
However, United’s course of conduct constituted “waiver” of such a claim, not only because United failed to notify Ms. Brown of any defect in her claim to allow swift correction, but also because United continued to proceed with examinations as though no prima facie defect in the claim existed, so to further insulate Ms. Brown from being alerted to any technical, but statutorily important, omission from the form. United’s “own actions prevented the Plaintiff from rectifying the alleged claim form defect. Insurers have a duty to provide an explanation of benefits that disclose the reasons for nonpayment, especially when the issues can be easily resolved.” See Gelb v. United Automobile Insurance Company, 14 Fla. L. Weekly Supp. 103b (Fla. 17th Cir. Ct., October 27, 2006).
Accordingly, the trial court did not err in estopping United from raising now, as a defense, the lack of fulfilling a condition precedent, the fulfillment of which United effectively waived by its conduct. See Gelb, supra.
Accordingly, the trial court’s Order denying Defendant’s Motions for Summary Judgment and granting fees and costs is AFFIRMED.
