16 Fla. L. Weekly Supp. 358d
Online Reference: FLWSUPP 164FAJAR
Insurance — Personal injury protection — Notice of loss — Disputed issue of material fact exists as to whether notice of initiation of treatment was timely provided where postmark on envelope in which provider sent notice was unclear and appeared to indicate date that was federal holiday — Postmark clearly showed that subsequent bills were not timely submitted, and insurer’s motion for summary judgment with respect to these bills is granted — Professional license number — Insurer is not obligated to pay bills that lack physician’s professional license number — Standing — Assignment — In absence of evidence of any demonstrated confusion or prejudice arising from use of shortened version of provider’s name in assignment, insurer is not entitled to summary judgment on issue of standing — Limitation of actions — Insurer’s motion for summary judgment is granted as to bills that became overdue more than five years prior to filing of suit
ADVANCED DIAGNOSTIC AND PAIN MANAGEMENT, INC. (a/a/o Caridad Fajardo), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-15390 COCE 53. February 4, 2009. Robert W. Lee, Judge. Counsel: Rami Shmuley, Fort Lauderdale, for Plaintiff. Cassandra Jeffries, Luks, Santaniello, Perez, Petrillo & Gold, Fort Lauderdale, for Defendant.
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on January 30, 2009 for hearing of the Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:On December 30, 2008, the Defendant served its Motion for Summary Judgment. By Order dated January 6, 2009, the Motion was set for hearing for January 30, 2009. The Defendant has raised four grounds, not all of which apply to all of the bills in this case:
(1) Late Notice of Bills;
(2) Failure to Provide Physician’s License Number;
(3) Lack of Standing; and
(4) Statute of Limitations.
Conclusions of Law:Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. Rule 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Caridad Fajardo was reasonable, medically necessary, and related to the accident.
The Court will address separately each of Defendant’s arguments.
(1) Late Notice. Under Florida Statute §627.736(5)(c), an insurer is not obligated to pay PIP bills for “charges for treatment or services rendered more than 35 days before the postmark date of the statement.” An exception is made for bills submitted within “75 days before the postmark date of the statement” if the provider submitted a “notice of initiation of treatment within 21 days after its first examination or treatment.”
In the instant case, some of the bills fall within the 35 to 75 day window. Therefore, the submission of the notice of initiation of treatment must be considered. In the instant case, the first date of treatment was January 23, 2003. The Defendant claims that the notice was received on February 19, 2003, with a postmark date of February 17, 2003. Under the statute, the deadline for mailing would have been February 13, 2003. In that the date of the postmark on the envelope is not clear, and that February 17, 2003 was a federal holiday, the Court finds that a disputed issue of material fact continues to exist as to when the notice was “provided” as required by the statute.
The Defendant further alleges that it received bills for services rendered March 13, 2003; May 1, 2003; and May 16, 2003, all in an envelope postmarked November 13, 2003. These were clearly submitted untimely. The Plaintiff did not contravene Defendant’s prima facie evidence. Therefore, as to these three bills, the Motion for Summary Judgment is GRANTED.
The Defendant further alleges that it never received the January 13, 2004 bill until the demand letter of July 2, 2008. The Plaintiff did not contravene Defendant’s prima facie evidence on this point. Therefore, as to the January 13, 2004 bill, the Defendant’s Motion for Summary Judgment is GRANTED.
(2) Physician’s Licensing Number. Effective October 1, 2003, the Florida Legislature passed a law requiring that providers include the “professional license number of the provider” on the bill. Fla. Stat. §627.736(5)(d). See R. Lazega, Florida Motor Vehicle No-Fault Law §5:10 (2006). In the instant case, bills were submitted dated October 23, 2003; October 31, 2003; and January 9, 2004, none of which comply with this statute although the statute was in effect at the time.
In a similar situation, one circuit appellate court has ruled that the absence of a physician’s license number does not put the insurer on “notice of a covered loss” as required by the statute. Aries Ins. Co. v. First Chiropractic Clinic, Inc., 12 Fla. L. Weekly Supp. 637, 637 (13th Cir. Ct. 2005). Other cases also address the absence of this information. See Top Chiropractic v. Nationwide Mutual Ins. Co., 12 Fla. L. Weekly Supp. 152 (Orange Cty. Ct. 2004); Miami Medical Group v. Progressive Southeastern Ins. Co., 11 Fla. L. Weekly Supp. 246 (Miami-Dade Cty. Ct. 2004). The decision in these three cases is understandable in light of the Legislature’s specific inclusion of the license requirement in the statute. As a result, this Court concludes that the license requirement is “material” under Fla. Stat. §627.736(5)(d). See also, Fort Lauderdale Center for Chiropractic Care, Inc. v. Progressive Express Ins. Co., 16 Fla. L. Weekly Supp. 110 (Broward Cty. Ct. 2008). Therefore, because the bills for these three dates are not “substantially complete, and substantially accurate [. . .] as to all material elements,” as required by Fla. Stat. §627.732(13), due to the lack of physician’s license number, the Defendant is not obligated to pay them. Accordingly, as to these three dates of service, the Defendant’s Motion for Summary Judgment is GRANTED.
(3) Standing. The Defendant next claims that the assignment of benefits attached to Plaintiff’s Complaint is in the name of “Advanced Medical,” rather than the complete legal name of the provider. In ¶9 of the Complaint, the Plaintiff relies on this Assignment to establish its standing. The Court notes that the Assignment also includes the address of “Advanced Medical.” In the absence of any demonstrated confusion or prejudice arising from the use of a shortened version of the name, the Court cannot say at this point that the Defendant has demonstrated the absence of any disputed issue of material fact on this issue. Therefore, the Defendant is not entitled to summary judgment on the issue of standing.
(4) Statute of Limitations. The statute of limitations for these claims is five years from the time the claim was overdue. The dates of treatment in this case are from January 23, 2003 through January 13, 2004. The lawsuit was filed on October 2, 2008. Claims are overdue “30 days after the insurer is furnished written notice of the fact of a covered loss.” Fla. Stat. §627.736(4)(b). For the nine bills still at issue in this case, eight were received by the insurer outside of the statute of limitations (bills for treatment from January 23, 2003 through July 18, 2003). Even assuming the statute of limitations were tolled for 30 days to provide the statutory presuit demand letter, the bills still fall outside the period. See Fla. Stat. §627.736(10)(d). Therefore, as to these bills, the Defendant’s Motion for Summary Judgment is GRANTED. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED as to all dates of service except September 23, 2003.
