16 Fla. L. Weekly Supp. 37b

Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Insurer did not waive right to raise affirmative defense of failure to submit D&A form by failing to issue explanation of benefits

CHIROPRACTIC RADIOLOGY CONSULTANTS, P.A., (Alexis Rivero), Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-33442 CACE (19). L.T. Case No. 07-00276 COCE (53). October 22, 2008. Counsel: Roberts J. Bradford, Jr., for Appellant. Thomas L. Hunker, Office of the General Counsel, for Appellee.

OPINION

(JEFFREY STREITFELD, J.) THIS CAUSE is before the Court on the Appellant, Chiropractic Radiology Consultants, P.A.’s, appeal from a County Court Final Judgment in favor of the Appellee [15 Fla. L. Weekly Supp. 160a].

The Court, having reviewed the briefs and record below, dispenses with oral argument and affirms the judgment. Appellant has failed to demonstrate reversible error.

This Court follows the holding of the Third District Court of Appeals in United Automobile Insurance Company v. Garrido, 2008 WL 2811804 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D1846b], reh’g and reh’g en banc denied Sept. 24, 2008, finding that the Insurer has not waived its right to raise as an affirmative defense the Insured’s failure to submit a disclosure and acknowledgement form even though the Insurer did not raise the issue in its Explanation of Benefits to the Insured. In Garrido, the court determined that pursuant to 627.736(5)(c)(1) Fl. Stat. failure to timely file certain medical bills is a jurisdictional consideration that cannot be waived. Similarly, the submission of the disclosure and acknowledgement form, pursuant to 627.736(5)(e) Fl. Stat. is a mandatory requirement. Failure to provide notice of this omission does not preclude the Insurer from raising the issue as a defense.

Accordingly, the Final Judgment in favor of Appellee is AFFIRMED.