16 Fla. L. Weekly Supp. 854b
Online Reference: FLWSUPP 169LEVY
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where medical provider used self-generated D&A form rather than standard form adopted by the Department of Financial Services, and insured did not sign D&A form on initial date of treatment, provider did not provide insurer with notice of covered loss
CRYSTAL LEVY, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2008-CC-020314, Division Q. July 1, 2009. Dawn K. Hudson, Judge. Counsel: D. Scott Craig, Law Office of D. Scott Craig, P.A., Jacksonville, for Plaintiff. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: SUBMISSION OF AN IMPROPER DISCLOSURE AND ACKNOWLEDGMENT FORM AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, came before the Court on June 3, 2009 for hearing of the Defendant’s Motion for Summary Disposition and Plaintiff’s Motion for Summary Judgment. Present before the Court, appeared counsel for Defendant, James B. Eubanks, Esquire, and for Plaintiff, D. Scott Craig, Esquire. Having heard arguments of counsel, reviewed the pleadings, motions and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. On or about December 5, 2008, Plaintiff, CRYSTAL LEVY, filed this case sub judice, regarding non-payment of No-Fault benefits for services rendered to the insured.
2. The Plaintiff alleges that on May 21, 2008, the Bracken Family Chiropractic began to treat the insured and subsequently submitted bills to Defendant that included a purported Standard Disclosure and Acknowledgment Form.
3. The Defendant subsequently denied benefits pursuant to Florida Statute §627.736(5)(e)1 through 9, as the Standard Disclosure and Acknowledgment Form for Bracken Family Chiropractic failed to comply with the dictates of the Statute. Therefore, the Defendant claimed that it was not placed on notice of a covered loss.
4. Specifically, the Standard Disclosure and Acknowledgment Form was not signed on the initial date of treatment and the medical provider failed to use the proper Standard Disclosure and Acknowledgment Form.
5. The affidavit of Crystal Levy was attached to Plaintiff’s Motion for Final Summary Judgment, attested to the fact that she received the treatment itemized on the provider’s bills and that all such treatment was explained to her by Dr. Bracken. Ms. Levy’s affidavit also attested to the fact that she left Dr. Bracken’s facility without signing the Standard Disclosure and Acknowledgment Form because she was running late and had to relieve the babysitter.
6. FLA. STAT. § 627.736(5)(e)(1) requires,
At the initial treatment or service provided, each physician . . . providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person . . . to execute a disclosure and acknowledgment form . . .
(Emphasis added)
7. FLA. STAT. § 627.736(5)(e)(1)(a) states,
The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered.
(Emphasis added)
8. FLA. STAT. § 627.736(5)(e)(5) states,
The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) . . .
(Emphasis added)
9. FLA. STAT. § 627.736(4)(b) states,
Personal injury protection insurance 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 of the amount of same.
(Emphasis added)
10. Pursuant to FLA. STAT. § 627.736(5)(e)(7), the Florida Legislature has empowered the Financial Services Commission to adopt a Standard Disclosure and Acknowledgment Form. The Standard Disclosure and Acknowledgment Form shall be utilized by medical providers. See FLA. ADMIN. CODE. ANN. 690-176.013.
11. Additionally, FLA. STAT. § 627.736(5)(e)(7) states that:
The Financial Services Commission shall adopt, by rule, a Standard Disclosure and Acknowledgment Form that shall be used to fulfill the requirements of this paragraph, effective 90 days after such form is adopted and becomes final. The commission shall adopt a proposed rule by October 1, 2003. Until the rule is final, the provider may use a form of its own which otherwise complies with the requirements of this paragraph.
(Emphasis added)
12. Instead of using the required Form, adopted by the Office of Insurance Regulations, and required by FLA. STAT. § 627.736, the Plaintiff’s medical provider chose to use its own self-generated form.
13. Defense counsel argued that the failure to use the standard form and use of the form generated by the medical providers contained deficiencies which are fatal flaws and resulted in a failure of the Plaintiff to place the Defendant on notice of a covered loss.
14. Defense counsel presented a Duval County Court ruling, Martiza Lahodik v. Progressive Express Insurance Company, 16 Fla. L. Weekly Supp. 175c (Fla. 4th Jud. Circuit, Duval County, June 12, 2008), as persuasive authority where the treating physician whose bills were at issue failed to use the proper Form pursuant to the clear language of Florida Statute §627.736 and was subsequently denied benefits.
15. However, Plaintiff’s counsel presented arguments that the Form substantially complied with the Statute.
16. As authority to establish the existence of substantial compliance, Plaintiff’s counsel cited to Florida Statute §627.736(5)(b)(1)(d), which states:
(b)1. An insurer or insured is not required to pay a claim or charges:
d. With respect to a bill or statement that does not substantially meet the applicable requirements of paragraph (d);
17. This Court recognizes the existence of a substantial compliance standard in relation to paragraph (d), however the pertinent portion of the PIP Statute dealing with the Standard Disclosure and Acknowledgment Form is subsection (e), not (d). Subsection (d) relates to the proper completion of CMS 1500 Forms.
18. In fact, the legislature provided for a 90 day window following October 1, 2003 in which a medical provider may substantially comply with the proper form by continuing to use its own form, which otherwise complies with the statutory requirements. Florida Statute §627.736(5)(e)(7).
19. The legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th Dist. Ct. App. 2000).
20. The statutory language is clear and unambiguous, the standard Form adopted by the Department of Financial Services must be used upon the Form becoming final, 90 days after October 1, 2003. Therefore, the medical provider’s failure to use the standard Form results in a failure to place the Defendant on notice of the fact of a covered loss. Florida Statute §627.736(4)(b).
21. Additionally, the Plaintiff’s purported Disclosure and Acknowledgment Form does not comply with statutory requirements of Florida Statute §627.736(5)(e)(1) as it was not signed on the initial date of service, with proper informed consent. Therefore, such a failure also results in a failure to place the Defendant on notice of the fact of a covered loss. Florida Statute §627.736(4)(b). This deficiency cannot be corrected, as the statute requires the Form to be signed on the initial date of service.
22. There are no genuine triable issues of fact, the evidence is clear that the Plaintiff’s medical provider created and used a non-compliant Disclosure and Acknowledgment Form, in violation of Florida Statute §627.736(5)(e)(7), and the Plaintiff did not sign the purported Form on the initial date of service, in violation of Florida Statute §627.736(5)(e)(1). Therefore, the Plaintiff’s medical provider did not provide Defendant with written notice of the fact of a covered loss pursuant to Florida Statute §627.736(4)(b) and Plaintiff has failed to state a cause of action.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby Granted and Plaintiff’s Motion for Summary Judgment is hereby Denied. This Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
