16 Fla. L. Weekly Supp. 755a
Online Reference: FLWSUPP 168YOUN2
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — PIP statute does not allow insurer to raise deficiency of D&A form as defense after payment of claim — No merit to argument that even if insurer can raise deficient D&A form as defense, payment of claim waived defense as to incompleteness of form — Both waiver and estoppel would prevent insurer from raising defense that form was deficient because fax copy rather than original was sent to insurer where insurer gave permission for fax and paid claim — Question certified: Does section 627.736(4)(b) allow an insurer to assert at any time, including after payment of the claim or after the 30-day time period for payment set forth in subsection (4)(b), that a claim violates any of the requirements set forth in subsection (5)
DONALD W. LOWERY, D.C., (as assignee of Daris Young), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-SC-006332, Division B. July 10, 2008. Roberto A. Arias, Judge. Counsel: Vincent P. Gallagher, Beach Life Law LLC, Jacksonville Beach. James B. Eubanks, Rinaman and Associates.
AMENDED ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on Defendant’s Motion for Summary Judgment based upon the Plaintiff’s incomplete disclosure and acknowledgment form submitted after the insured’s first visit for medical treatment related to a covered motor vehicle accident. Plaintiff failed to list the services provided on the disclosure and acknowledgment form and faxed the form rather than mail the original as required by statute. Despite making full and timely payments for that date of service, Defendant now avers that either of those alleged violations resulted in Defendant not being put “on notice” as required by F.S. §627.736(4)(b), and therefore subsequent unpaid dates of service are not allowable. The facts are not in dispute.
I. FACTS
On September 5, 2006, Daris Young (Young) was involved in a motor vehicle accident (MVA). On October 13, 2006, Young first sought medical treatment with Plaintiff, Dr. Donald Lowery, (Lowery) for injuries related to the MVA. Lowery was a Progressive Blue Star participant. As a Progressive Blue Star participant, Progressive authorized Lowery to fax the forms to a dedicated fax number for Blue Star Providers. Included in the Progressive provided fax cover sheet was a reminder to fax the disclosure and acknowledgment form.
Lowery, as a Progressive Blue Star Provider, directly faxed to Progressive the original Disclosure and Acknowledgment Form, a HICF, which included the diagnosis, (cervical radiculitis, lumbar sprain and headaches) the therapy and treatment rendered, (CPT codes 99203, 97535, 97010, 97012, and 97112-59) and the cost of said treatment ($370.00). Lowery also included all treatment notes for the October 13, 2006 services, in the 15 pages timely faxed to Progressive. Although the description of services provided were included in the HICF, the disclosure and acknowledgment form failed to describe the services actually rendered in the space provided. This failure to set forth the services “actually rendered” caused the disclosure and acknowledgment form to violate Section 627.736(5)(e).
Based on the information Lowery supplied Progressive, Progressive generated a statutory required explanation of benefits (EOB). The first EOB Progressive generated was dated October 31, 2006, and included the patient name, Daris Young, the claim number, the provider, (Lowery), the diagnosis, the CPT codes billed, and the amount charged for each CPT code. Progressive declined to authorize payment for two CPT codes; 99203 and 97112-59, stating that these codes required “approval from a licensed MCR. . .” (medical claims representative). Thereafter, Progressive generated a second EOB on November 2, 2006, and approved the CPT codes which had been reviewed by the Progressive licensed MCR.
Young’s first date of treatment, October 13, 2006, was timely billed, reviewed by Progressive and paid in full at the Blue Star Provider agreed upon rates. Lowery continued to provide medical treatment to Young, and billed Progressive $4,851.00 for treatment rendered thru December 18, 2006. Progressive paid Lowery the negotiated rates on a timely basis. It is undisputed that Progressive timely paid Lowery for all medical treatment rendered to the insured from October 13, 2006 through December 18, 2006.
On December 12, 2006 Progressive required Young to attend a Compulsory Medical Exam (CME) which was performed by Dr. Roskein. Dr. Roskein opined that Young had reached an endpoint for therapeutic benefits and that no further chiropractic care was necessary. Progressive notified Young on December 21, 2006, that PIP benefits “have been suspended for chiropractic treatment effective 12/23/2006.”
Young and Lowery did not agree with the Progressive CME opinion and Young continued medical treatment with Lowery. Lowery continued to bill Progressive for the medical treatment rendered subsequent to December 23, 2006. Progressive ceased making payments to Lowery for any treatment rendered to the insured after December 23, 2006.
Due to Progressive’s refusal to make payments, Lowery sent a statutory pre-suit demand letter for non-payment for medical treatment rendered to Young for dates of service December 27 and December 29, 2006. Progressive responded on February 9, 2007 and stated that “Progressive will be defending the denial of the above listed date of service based on the chiropractic ime suspension that was effective on 12/27/06.”
On January 30, 2007, Lowery sent a statutory pre-suit demand letter for non-payment for medical treatment rendered to Young on January 3 and January 5, 2007. Progressive responded on February 15, 2007, stating “Progressive will be defending the denial of the above listed date of service based on the no show chiropractic ime suspension that was effective on 12/23/06.”
On March 14, 2007, Lowery sent a statutory pre-suit demand letter for non-payment for medical treatment rendered to Young on January 10, 22, 24, and 26, 2007. Progressive responded on March 30, 2007, and stated that “Progressive will be defending the denial of the above listed date of service based on the chiropractic ime suspension that was effective on 12/27/06.”
On March 28, 2007, Lowery sent a statutory pre-suit demand letter for non-payment for medical treatment rendered to Young on January 31, 2007. Progressive responded on April 12, 2007, and stated that “Progressive will be defending the denial of the above listed date of service based on the chiropractic IME suspension.” Despite receiving four different demand letters, at no time did Progressive indicate that Progressive lacked any notice regarding the unpaid claims.
On June 26, 2007, Plaintiff filed suit against Defendant for dates of service from December 27, 2006 thru January 30, 2007. Each Progressive EOB for the unpaid dates of service stated “no fault benefits for chiropractic treatment under this policy have been suspended based on the Independent Medical Examination.” Progressive never communicated to Lowery that Progressive’s refusal to pay was based on lack of notice relative to the October 13, 2006 disclosure and acknowledgment form.
Progressive has filed a Motion For Summary Judgment asserting that the incomplete disclosure and acknowledgment form (Form) failed to put Progressive on notice of a covered loss under Section 627.736(4)(b) because, under subsections (5)(d) and (5)(e)(5), the statement or bill failed to comply with subparagraph (5)(e)(1). Therefore, it argues, the dates of service in dispute which were not paid solely due to the CME suspension were never properly billed and therefore are not overdue. In answer to this Court’s concern regarding equitable issues of estoppel and waiver, Progressive relies upon §627.736(4)(b), Florida Statutes, as authorizing Progressive to raise the “lack of notice” issue at any time.
The following are the relevant parts of the subsections of Florida Statute 627.736 involved in this case:
(5)(e)(1) provides:
“At the initial treatment of 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 which reads at a minimum that . . .”
(5)(e)(1)(a) provides:
“The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered.”
(5)(e)(1)(d) provides:
“That the physician . . . rendering services for which payment is being claimed explained the services to the insured . . .”
(5)(e)(5) provides:
“The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to the paragraph (4)(b) and may not be electronically furnished.”
(5)(d) provides:
“For purposes of paragraph (4)(b), an 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, and unless the statements or bills are completed in their entirety as to all material provisions, with all relevant information being provided therein.”
(4)(b) provides:
“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. If such written notice is not furnished to insurer as the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part of all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge. . . This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.”
Progressive reads subsection (4)(b) as allowing it unlimited time to assert its failure to have notice due to the improperly filled Form. Putting aside the issues of waiver and estoppel, a correct reading of the statute demonstrates that Progressive’s interpretation is incorrect. Florida Statutes §627.736(4)(b) does not authorize Progressive to assert a deficiency of the Form at any time.
II. DISCUSSION OF LAW
“When the language of a statute is clear and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Blanton v. City of Pinellas Park, 887 So.2d 1224 (Fla. 2004). It is when the statutory language is unclear that courts will apply rules of statutory construction and explore legislative history to determine legislative intent. Freeman v. First Union Bank, 865 So.2d 1272 (Fla. 2004). When reviewing the provisions of a statute, the courts should “look to the provisions of the whole law, and to its object and policy, rather than consider various statutory subsections in isolation from one another and out of context.” Klonis v. State Dept. of Revenue, 766 So.2d 1186, 1189 (Fla. 1st DCA 2000). Moreover, when a statute expressly mentions or enumerates specific situations, exemptions or things on which it is to operate, the statute will ordinarily be construed as excluding from its operation all others not listed. Crescent Miami Center, LLC v. State Department of Revenue, 857 So.2d 904 (Fla. 3rd DCA 2003). Plaintiff and Defendant both maintain that the language of subsection (4)(b) is clear and unambiguous, yet they reach opposite conclusions as to the subsection’s meaning. They have demonstrated that the language of subsection (4)(b) does not provide clear and unambiguous guidance as to which types of assertions may be raised at any time by the insurer. Thus, the court cannot be sure of the subsection language’s meaning without resorting to statutory construction rules.
The insurer’s argument that subsection (5)(e)(5) provides that it is not placed on notice of the claim under subsection (4)(b), if the form is not adequately filled out, does not provide it with relief from payment of subsequent treatments which are properly filed. The reference to subsection (4)(b), contained in subsection (5)(e)(5) simply requires the medical provider to submit the Form to the insurance company or be subject to a denial of payment for the provider’s bill for services or treatment rendered during the initial treatment of the insured. That is why section (5)(e)(9) also provides that “[t]he requirements of this paragraph [(5)] apply only with respect to the initial treatment or service of the insured by a provider.” All other subsequent treatments or service are subject to the requirements that the provider “maintain a patient log signed by the patient . . . that is consistent with the underlying services being rendered to the patient as claimed.” Section 627.736(5)(e)(9), Florida Statutes. These “services being rendered” are not those performed at the initial visit. These “services” refer to all treatments subsequent to the initial visit which treatment would be subject to their inclusion in the Form, as required by subsections (5)(e)(1)(a) and (d). The provisions of subsection (5)(e)(9) further support this Court’s reading of the requirements of subsection (5)(e)(1) and the consequences for its violation. Otherwise, the legislature would have clearly stated it.
Subsection (4)(b) uses “covered loss” to relate to the damages and expenses for which insurance benefits are payable. Simply stated, “covered loss” is a damage or expense that has arisen as a result of an automobile accident which has triggered the “security required by sections 627.730-627.7405”. Section 627.736(4)(a), Florida Statutes. The statute considers and contemplates that “losses” will be of a continuing nature and will accrue at different times. Subsection (4)(a) recognizes this when it discusses the required credit for benefits received under worker’s compensation law. That subsection provides that the “[b]enefits due from the insurer . . . shall be due and payable as loss accrues . . .”(emphasis added). Likewise, in subsection (4)(b) “covered loss” does not mean the entire claim or a total of the losses incurred in the claim. On the contrary, as it is used, it is clear that the legislature intended it to mean an injury, damage or expense which has risen as a result of a covered automobile accident, during the applicable billing period. This is clearly apparent because there is no possible way that a medical provider may be able to submit all of the bills for future expenses that may arise. And, subsection (4)(b) provides for partial amounts to be submitted by the provider to the insurer. This subsection clearly provides that “any part of the remainder of the claim that is subsequently supported by written notice” to the insurer will be overdue. Therefore, it recognizes the fact that a “covered loss” will accrue at different times. Moreover, subsection (5)(d) similarly provides that improperly completed statements or bills and those that do not comply with subsection (5), fail to give an issuer notice of covered loss or medical bills. This subsection does not state that the insurer would not be placed on notice of the future claims if one of the statements, including the first, is deficient. On the contrary, when read in conjunction with the tolling provisions of subsection (4)(b), the relationship between the subsections becomes clear. It is also clear that the legislature developed the tolling provisions in order to allow the insurer to receive properly completed statements and bills from which to make informed decision to pay, as well as to allow the medical providers with an opportunity to correct any mistakes in those billings.
The consequence to a provider, who gives improper written notice that such a “covered loss” has accrued, is that it’s bill might not be paid. The initial bill may include charges for medical services and treatment rendered even up to seventy-five (75) days before the postmarked date of the statement. Section 627.736(5)(c)(1), Florida Statutes. Therefore, the consequences of failing to properly submit a Form may be substantial and “the reference to (4)(b) and subsection (5)(e)[is not] meaningless.” Cf., NW Broward Orthopedic Associates, P.A. and MRI Radiology Network, P.A. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 740a (Fla. 17th Jud. Cir., Broward County 5/11/06).
The relevant part of subsection (4)(b) included herein and which the Plaintiff and Defendant read differently provides:
“This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.” (underlined added)
Progressive and several Courts have interpreted the above statute as allowing the insurer to raise deficiencies in the Form, as a defense to lawsuits brought to recover payment for statements that have been denied, long after the initial statement which accompanied the Form had been paid.1
The Defendant parenthetically also argues that any of the payments received by the Plaintiff from Defendant could be subject to recoupment. In other words, the Defendant maintains that it is entitled not only to claim a defense to the demands for payment made by Plaintiff in its Complaint, but would also be entitled to reclaim the payments made to Plaintiff, because of the inadequacies of the Form. The Defendant’s position is that, if the Form fails to describe the services provided, the medical provider is unable to cure the defect and thusly not entitled to receive payments for the initial visit and treatment which triggered the necessity for the Form, as well as for any future treatments which may follow. This would be so regardless of whether the services rendered were related to the automobile accident, medically necessary, reasonable, and the charges were legally permitted and not in excess of those allowed by law. While some Courts may have found there would not be any prejudice to the insured by holding as Defendant suggests, “because where the medical provider has not complied with the legal requirement to submit the bill, neither the insurer nor the insured are responsible for payment,” this Court disagrees. Cf., North Florida Medical Clinic, Inc. v. Progressive Select Insurance Company, 14 Fla. L. Weekly Supp. 689b (Fla. 4th Judicial Cir., Duval County 5/1/07). In response to this Court’s inquiry, the Defendant agreed that the injured party (the insured) would have to change medical providers to seek medical treatment for his/her injuries, if the medical provider refused to provide free medical services once it discovered that the Form was deficient and the insurance company could then deny payments for future treatments. This would be so regardless of whether the insured had been in treatment for an extended period of time or whether the insured’s treatment would have to be stopped, requiring the insured to seek a new medical provider and suffer a delay of treatment to allow the new medical provider to again re-evaluate the insured’s injuries, make an independent diagnosis and establish and restart a treatment protocol. Such an interpretation of the statute would not only individually prejudice the insured, but would also lead to absurd and unconscionable results. The Supreme Court has recognized that an insured can suffer non-economic injuries, as those set forth above, when disputes arise between insurance carriers and the medical provider. Allstate Ins. Co. v. Kalamanos, 843 So.2d 885 (Fla. 2003).
The Defendant also acknowledges that the Form is completed and required only at the first visit. Subsequent treatments and re-evaluations of the medical conditions of the insured does not require any other Forms to be submitted. Neither is the initial form required to be amended regardless of whether the latter treatment drastically changes due to a revised diagnosis. That is, if the insurers original diagnosis stated on the form changes to an altogether different one, requiring totally different medical services to be rendered to the insured, the medical provider is not required to submit a new form. Therefore, while the Form may be an integral part of the processing of the initial claim or first billing, it is not such that compensation for future and otherwise proper medical services would be uncompensable, just because of an error or deficiency in the original Form.
The core argument advanced by Progressive solely relies upon Section 627.736(4)(b), Florida Statutes, for allowing unlimited time to challenge the adequacy of the Form, even months after Progressive has fully paid the insured’s first visit. The Defendant reads the above quoted language of subsection (4)(b) as: “This paragraph does not preclude or limit the ability of the insurer to assert that the claim was . . . in violation of subsection (5) . . .” This proposed reading would allow the Defendant to raise the deficiency of the Form as a defense to his action.
A grammatical analysis of the language used by the legislature in Subsection (4)(b) clearly shows that “in violation of [ ] subsection (5)” was intended to modify the last preceding clause: “the amount of the charge was in excess of that permitted. . .”. This last clause follows the first three clauses in the sentence which qualify and describe “the claim.” The first three clauses would then read: (1) the claim was unrelated, (2) the claim was not medically necessary, or (3) the claim was unreasonable. These three initial clauses are separated by commas and are followed by the last clause, dealing with charges in excess, which is not separated by a comma. The absence of a comma therein signifies that the following clause is the last clause in the series of clauses.2 Therefore, the last clause which provides “that the amount of the charge was in excess of that permitted under” is subject to the grammatical statutory construction doctrine of the last antecedent.
The doctrine of the last antecedent holds that “ ‘relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote.’ ” Ward v. State, 936 So.2d 1143, 1147 (Fla. 3rd DCA 2006) (quoting City of St. Petersburg v. Nasworthy, 751 So.2d 772, 774 (Fla. 1st DCA 2000). Because there is no comma or other punctuation after the disjunctive “or” preceding the last clause, the qualifying phrase that follows “is read as limited to the last item in a series.” Edgewater Beach Owners Association, Inc. v. Walton County, 833 So.2d 215 (Fla. 1st DCA 2002); See Block, That “Dangerous Comma,” LXII No. 9, Fla. Bar J., 68-69 (1989).3 Moreover, “ ‘the legislature is presumed to know the meanings of words and the rule of grammar and the Court will give the generally accepted construction to both the phraseology of the act and the manner in which it is punctuated.’ ” Ward, supra at 1146, quoting Sailboat Apartment Corp. v. Chase Manhattan Mortgage & Realty Trust, 363 So.2d 564 (Fla. 3rd DCA 1978). However, “punctuation is the most fallible and least reliable indicator of the legislative intent.” Edgewater Beach Owners Asso. Inc., supra at 221. Thusly, “[if] from a view of the whole law, or from other laws in pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature.” Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452 (Fla. 1992).
Taking in consideration the above referenced grammatical rules and statutory rules of construction, it becomes clear that the legislature intended “or in violation of [ ]subsection (5)” to refer to the last clause as a continuing description of which type of excess charges may be raised at any time. That “or” was used by the legislature in its elementary sense as “a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that’. . .” Pompano Horse Club v. State, 111 So.2d 801, 805 (Fla. 1927). “Or,” therefore, is used herein to allow raising the issue of excess charges that are not permitted ‘either under or in violation of subsection (5).’ Thusly, the last antecedent rule keeps “in violation of [ ] subsection (5)” from applying to any of the other clauses.
A review of subsection (5) buttresses this Court’s conclusion that “in violation of” only refers to the “amount of the charge”. Subsection (5) contains a number of limitations and express prohibitions on charges that may be made. For example, subsection (5)(b)(2) sets limits on charges for certain thermograms, ultrasounds and other tests; subsection (5)(b)(3)(n)(4) sets limits on charges for certain nerve conduction tests; subsection (5)(b)(5) limits the amount of charges on MRIs. Similarly, subsection (5) does not require payment for some charges altogether. Subsection (5)(b)(1)(a) prohibits charges made by a broker or anyone making a claim on behalf of a broker, subsection (5)(b)(1)(b) prohibits charges for services or treatments that were not lawful at the time they were rendered; subsection (5)(b)(1)(c) prohibits charges made by anyone who submits false or misleading statements relating to claims or charges; subsection (5)(b)(1)(e) prohibits charging for improperly upcoded or improperly unbundled charges; subsection (5)(b)(1)(f) prohibits billing by a physician unless he has rendered the services or the services or treatment were rendered incident to his or her services; and, subsection (5)(1)(c)(1) prohibits the billing for services performed beyond certain time requirements. Thusly, any amounts charged in excess of those permitted or in violation of the requirements set forth above, would be subject to be asserted by the insurer at any time under the language of subsection (4)(b).
Moreover, even if the language in question did apply to the other preceding clauses, the Defendant’s argument would still fail. This is clearly illustrated by using only the first full clause: “the claim was unrelated. . . in violation of” [ ] subsection (5).” The prepositional phrase “in violation of would be applied to the complete clause, not just to the subject or noun of the clause, “claim,” as the Defendant proposes. This analysis, however, would not end the inquiry. Even if the Defendant is correct that “in violation of [ ] subsection (5)” refers back only to “claim,” a reading and analysis of all the statutory provisions in the No-Fault Law reflect that such application could not have been intended by the legislature. To read it the way Defendant proposes would limit the defenses that may be raised only to those contained in subsection (5). Such a reading would force courts to ignore the provisions of the other subsections which specifically place the restrictions that the services must be related, medically necessary and reasonable. The Defendant’s reading fails to harmonize subsection (4)(b) with the rest of the law’s provisions, legislative intent and judicial construction of the No-Fault Law. Therefore, the Defendant’s proposed construction must fail. Clines v. State, 912 So.2d 550 (Fla. 2005) (“When possible, we ‘must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another’ ”(citations omitted)).
“Florida Motor Vehicle NO FAULT Law, sections 627.730-.7405, Florida Statutes . . . was intended to provide a minimum level of insurance benefits without regard to fault . . . The general policy underlying the no-fault insurance law includes . . . an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like . . .” Kalamanos, supra at page 891. The intent of section 627.736(4), in particular, is to promote the prompt resolution of personal injury protection claims. United Auto Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001); Kalamanos, id. Further, Courts should not read a statute in such a way as to allow absurd results or consequences. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla. 1950). The interpretation proposed by the Defendant, even if it was the plain meaning of the statute, would defeat the legislative intent underlying the No-fault law and lead to unreasonable results and cannot control the resolution of this case. Gaston v. Kanter, 33 Fla. L. Weekly D925, 929 (Fla. 1st DCA 2008).
A review of subsection (5) reflects that the legislature has chosen to list only a few services which charges must meet the requirements that they be “medically necessary.” These are set out in subsection (5)(b)(2), (3), (4) and (6). All of these dealing with certain diagnostic tests. Therefore, it would be inconsistent with the legislature’s obvious intent, to deter and recoup payments made for unnecessary treatments or which are not related to an accident covered by No-Fault Law, to limit the insurer’s ability to assert that the claims or charges were not medically necessary only to those listed under subsection (5). The No Fault Law’s requirement is that all services, charges and treatments must be related, reasonable and medically necessary. This is especially so when the requirement of relatedness and medical necessity are more specifically required by other subsections within the No-Fault Law. For example, § 627.736(1) requires that all services must relate to an auto accident by providing that personal injury protection for certain persons be “as a result of bodily injury. . . arising out of the . . . use of a motor vehicle. . .” §627.732(2) defines “medically necessary”.4 § 627.736(1)(a) requires the coverage to pay “eighty percent of all reasonable expenses for medically necessary . . . services.” Subsection (1)(a) has been held require that the charges for a particular service be reasonable and the services be necessary. Auto Owners Ins. Co. v. Marzulli, 788 So.2d 1031 (Fla. 2nd DCA 2001). (“Under this statute, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary.” Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998)). Section 627.736(6)(b) requires providers to submit reports explaining why the treatment and costs of such treatment were reasonable in amount and medically necessary. And, Section 627.736(7) allows an insurer to withdraw or refuse payments for past and future treatments after it obtains a valid report by a Florida physician, stating that the treatments sought to be withdrawn “was not reasonable, related, or necessary.” United Auto. Ins. Co. v. Stat Technologies, Inc., 787 So.2d 920 (Fla. 3rd DCA 2001). These requirements of subsection 627.736(7)(a) have been held to apply to both past and future medical treatments. United Automobile Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3rd DCA 2008).5 Therefore, the Defendant’s interpretation of subsection (4)(b) would defeat the major protections against fraud and requirements of the No-Fault Law.
Even assuming that a medical provider never submitted a Form, the statute does not authorize Progressive to assert that failure after payment has been made. The statute limits those issues which Progressive may contest after making payment. When the legislature has specifically listed those areas that allow the insurer to make payment and still contest that payment, then those issues not listed are excluded from such claims. Crescent Miami Center, LLC., supra. After receiving the incomplete Form, Progressive could have legally tolled the time requirement to make the payment pursuant to F.S. §627.736(4)(b).
“[A]ll words in a statute should be construed so as to give them some effect, not so as to render them meaningless surplusage.” Edgewater Beach Owners Asso. Inc. v. Walton County, 833 So.2d 215, 221 (Fla. 1st DCA 2002) (citations deleted). Therefore, if the tolling language of (4)(b) and the intent of subsection (4), as held by the Supreme Court in Rodriguez, supra, is to be give effect, subsection (4)(b) must be read to not allow the insurer to assert deficiencies in the Form found herein, after the 30-day period.6
The Defendant’s interpretation of subsection (4)(b) would render the tolling provisions superfluous. If that subsection would allow insurers to claim any of the billings or statements were deficient, and therefore in violation of subsection (5), at any time, even after payments have been made, then the provision of subsection (4)(b) allowing the insurer to toll the 30-days payment period would be useless. It is rather difficult to imagine why the legislature would have seen a need to provide for a tolling period otherwise. If the legislature intended for subsection (4)(b) to say what Defendant reads it to say, the legislature could simply have done that by allowing the assertion of “all claims or charges which violate subsection (5)” rather than describing the four types of assertions that can be raised or that the “amount of the charge was in excess of that permitted under, or in violation subsection (5).” That is, if an “amount of the charge was in excess” of those permitted by subsection (5), it would then necessarily have been a “claim” made “in violation of subsection (5).” There would have been no need to include the limitation that the “charges” be “in excess” at all. Therefore, the Defendant’s interpretation is rejected as it would render these provisions of subsection (4)(b) useless and mere surplusage. Had Progressive followed the statutory remedy, that is, tolling the payment requirement until receipt of the incomplete documentation, this matter would not be before the Court. Progressive had ample time to review all of the submitted documentation and in fact chose to review two of the CPT codes. Progressive elected to accept the documentation and issue payment, rather than legally toll the payment process.
In addition to the tolling provisions of subsection (4)(b), the statute provides the insurer protection from paying questionable charges. Section 627.736(6)(b), Florida Statutes, provides that the treating physician, clinic or other medical institution must, if requested to do so by the insurer, “furnish forthwith a written report of the history, condition, treatment, dates and cause of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary together with a sworn statement [under penalty of perjury] that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and result of such bodily injury, and produced forthwith, and permit the inspection and copying of his or her or its records regarding such history, condition, treatment, dates, and cause of treatment . . . ” Once having made this request, the insurer’s duty to pay any other notice of a covered loss will be delayed to “within ten (10) days after the insurer’s receipt of the requested documentation or information”. Therefore, the insurer is protected against lawsuits from insureds or providers and it will not have to pay any bills until it receives enough information that satisfies it that the bills are medically necessary and reasonable.
These provisions and the tolling provisions of subsection (4)(b) grant safeguards to the insurer by allowing them to delay paying statements on charges which do not meet the requirements of the statute or which seem to be questionable. In sum, the insurer has been given complete protections from lawsuits and the ability to recoup payments made for unreasonable claims, medically unnecessary claims, unrelated claims, and excessive charges.
III. WAIVER AND ESTOPPEL
The Plaintiff has raised the issue of waiver and estoppel as a reason why, even if the Defendant could raise the deficiency of the Form as a defense, the Defendant should be kept from so raising it. The Court finds that waiver is not available to the Plaintiff with regards to the deficiency of the Form. To so hold would render the provisions of (4)(b) unenforceable any time the insurer would happen to pay any bills or statements. However, the court finds that the Plaintiff can raise and could prevail against the Defendant through waiver against the claim that Plaintiff faxed the Form instead of mailing the original. Also the court finds that equitable estoppel may be raised by the Plaintiff.
The elements that must be established to prove equitable estoppel are “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance upon that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance.” Sun Cruz Casinos, L.L.C. v. City of Hollywood, 844 So.2d 681 (Fla. 2003).
The Defendant has also raised the issue that the Plaintiff faxed Defendant the Form, rather than the original as required by subsection (5)(e)(5). In this case, the Defendant gave the Plaintiff permission to fax it the Form. Additionally, the Defendant not only paid the initial statement regardless of the Form’s deficiency, but also paid for eighteen additional dates of services. This, the Plaintiff argues constituted evidence to the Plaintiff that Defendant felt it was on notice of the claims and statements it was receiving. The Plaintiff argues that based upon the Defendant’s representation, manifested by making prompt payments, Plaintiff continued to treat the insured. The Court finds that should the Plaintiff prove the elements of estoppel, it could prevail against the Defendant. Therefore, having found that estoppel may be raised, the Defendant’s Motion for Summary Judgment should also be denied.
CONCLUSION
In summary, this Court does not wish to undermine the importance of the Form. Should the insurer receive an incomplete Form, the insurer may legally toll the time period to make payment until proper documentation is received and, if not received, the payment may be denied. The legislature did not create the remedy Progressive seeks and this Court may not legislate from the bench. Therefore, for all the foregoing reasons, the Defendant’s Motion for Summary Judgment is denied.
The result in this case may seem to beg the question of when is statutory language “clear and unambiguous”. This Court’s decision is premised on what it perceives to be the clear dictate of section 627.736, while it’s decision is diametrically different than what several other County judges have held the statute to “clearly” require. It may seem that what is “clearly” meant by section 627.736 is as certain as what the definition of beauty is.7 Such should not be the case especially when dealing with a statute that affects so many individuals and their health treatments and therefore this Court certifies the following question to the First District Court of Appeal as one of great public importance:
DOES SECTION 627.736(4)(b) ALLOW AN INSURER TO ASSERT AT ANY TIME, INCLUDING AFTER PAYMENT OF THE CLAIM OR AFTER THE 30-DAY TIME PERIOD FOR PAYMENT SET FORTH IN SUBSECTION (4)(b), THAT A CLAIM VIOLATES ANY OF THE REQUIREMENTS SET FORTH IN SUBSECTION (5).
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1NW Ortho. Assoc., P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 740a (17th Judicial Cir., Broward County, May 11, 2006); Ft. Lauderdale Pain Center, Inc. v. Allstate Ins. Co., 13 Fla. L. Weekly Supp. 1006a (11th Judicial Cir., Miami Dade County, July 17, 2006); Preziosi West/East Chiropractic Clinic, P.A., (a/a/o Federico Vega) v. Progressive American Ins. Co., 14 Fla. L. Weekly Supp. 789a (18th Judicial Cir., Seminole Co., May 11, 2007); North Florida Medical Clinic Inc., (a/a/o Margaret Pryor) v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 689b (Fla. 4th Judicial Circuit, Duval County, May 1, 2007); Theodore Janowksi v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 505a (4th Judicial Cir., Duval County, March 8, 2007); Jason Martin v. Progressive Auto Pro Ins. Co., Duval County Division K, Case No. 16-2005-SC-008073, January 29, 2007 [14 Fla. L. Weekly Supp. 394a], Julia Clark, a/k/a Julia Geiger v. Progressive Express Ins. Co., Duval County Court Division N, Case No. 16-2006-SC-004375, December 20, 2006 [14 Fla. L. Weekly Supp. 479a]. It appears that another county court has held similar to this court in Weiss v. Progressive Ins. Co., 13 Fla. L. Weekly Supp. 395 (Fla. 18th Judicial Cir., Seminole County 2006).
2Strunk and White, The Elements of Style (July 1999, Fourth Edition).
3At least one Court seems to have held otherwise holding that the absence of a comma before “as a result” meant that the clause modified each of the preceding clauses. Harvard Farms, Inc. v. National Casualty Co., 555 So.2d 1278 (Fla. 3rd DCA 1990). However, a closer reading of that decision reveals that the holding is based upon the Court’s finding that the clause was essential to the meaning of the sentence and could not be omitted. Therefore, a comma could not be used to separate it from the sentence.
4It is to be noted that the legislature has chosen to leave what is considered to be “related” and “reasonable” up to the trier of fact. State Farm Mutual Auto. Ins. v. Sestille 821 So.2d 1244 (Fla. 2nd DCA 2002).
5“Section 627.736(4). . .entitled ‘Benefits; WHEN DUE,’ deals with training as to when PIP benefits that are properly due must be paid by an insurer before they are considered overdue. . .[S]ection 627.736(4) does not deal with challenges to medical treatment on the basis that treatment is unrelated, unnecessary or unreasonable. (Footnotes omitted). Indeed, section 627.736(4) expressly provides that ‘[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable. . .’ [ ] Instead we find that withdrawal of PIP benefits on the basis that the medical treatment received was unrelated, unnecessary, or unreasonable is properly dealt with in accordance with section 627.736(7)(a).” Bermudez, id. at page 1216. This case makes clear that, if Defendant’s interpretation is followed, insurers would not be able to assert any lack of relatedness, unreasonableness or lack of medical necessity under section (7)(a), as this interpretation would limit insurers to assert only those defenses viable under subsection (5). That result is not supported by the statute nor the cases that have construed the statute.
6Before the amendment of subsection (4)(b) in 2001, adding the Motion, the subsection did not provide for tolling the 30-day period during which the insurer was required to pay the claim. That part was also added in 2001(Laws 2001, C. 2001-271). Before that amendment, the insurers only had the 30 days within which to pay the bills. The only way the insurer could safely refuse to pay was to have reasonable proof to establish that it was not responsible for the bills because the bills for services were not reasonable and necessarily incurred as a result of the accident. AIU Ins. Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000); Derius v. Allstate Indem. Co., 723 So.2d 271 (Fla. 4th DCA 1998); Superior Ins. Co. v. Libert, 776 So.2d 360 (Fla. 5th DCA 2001). Therefore, the amendment adding the tolling provision to (4)(b) lends support to the Plaintiff’s argument and evidences the legislature’s intent to provide a vehicle for resolution of the issues raised herein by a method other than a blanket denial of payment. This conclusion supports the Florida No-Fault Law’s intent to promote the prompt resolution of PIP claims. United Auto Ins. Co. v. Rodriguez, 80 So.2d 82 (Fla. 2001).
7“Beauty is altogether in the eye of the beholder.” “Friends of India” (1893), Lou Wallace; Margaret Wolf Hungerford, “Molly Bawn”) (1878).
