16 Fla. L. Weekly Supp. 176a
Online Reference: FLWSUPP 162TYSON
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Medical provider that did not furnish D&A form to insurer failed to provide written notice of covered loss — Insurer is not estopped from asserting D&A form defense by initialing paying claims and then denying further payment based on independent medical examination — Medical provider opposing motion for summary judgment concerning failure to provide D&A form must present counter-evidence sufficient to reveal genuine issue of material fact, not merely assert that issue exists
FIRST COAST MEDICAL CENTER, INC., As assignee of SEDERIA TYSON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2008-SC-005006, Division Q. December 5, 2008. Brent D. Shore, Judge. Counsel: Vince P. Gallagher, Beach Life Law, 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: FAILURE TO PROVIDE A DISCLOSURE AND ACKNOWLEDGMENT FORM
THIS CAUSE, came before the Court on November 18, 2008 for Hearing of the Defendant’s Motion for Summary Disposition Re: Failure to Provide a Disclosure and Acknowledgment Form. Present before the Court appeared counsel for Plaintiff, Vincent P. Gallagher, Esquire, and counsel for Defendant, James B. Eubanks, 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 June 4, 2008, First Coast Medical Center, Inc., (“Plaintiff”) filed this case sub judice, regarding non-payment of No-Fault benefits for alleged services rendered to the insured, Sederia Tyson, as a result of a motor vehicle accident on December 20, 2006. (See Paragraphs 5 and 10 of Plaintiff’s Complaint.)
2. The insured was also involved in a prior motor vehicle accident on March 4, 2005. As a result of the prior accident and injuries, the insured began treating at Plaintiff’s facility on March 11, 2005.
3. A statutorily compliant Standard Disclosure and Acknowledgment Form was completed on the initial date of treatment, March 11, 2005, and subsequently produced to State Farm as related to the claim for PIP benefits from the March 4, 2005, accident. However, the Plaintiff never produced a statutorily required Standard Disclosure and Acknowledgment Form for the PIP claim that was filed relating to the subject motor vehicle accident that occurred on December 20, 2006.
4. It is uncontested by Plaintiff’s counsel, and established into the record by an affidavit of Julie Selzer filed with the Court on September 23, 2008, that Plaintiff failed to provide Defendant with a Standard Disclosure and Acknowledgment Form for the subject PIP claim. Therefore Plaintiff failed to comply with the requirements of FLA. STAT. § 627.736(5)(e), which states, in pertinent part:
“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 . . .”and “ . . . the form shall be furnished to the insurer pursuant to paragraph (4)(b). . .” (emphasis added)
5. Instead, Plaintiff’s counsel asserts the principle of estoppel. Citing to Defendant’s initial payment of benefits and subsequent denial after obtaining the independent medical examination of Dr. Frank E. Hurst, D.C., who opined that the insured’s injuries were not related to the subject motor vehicle accident.
6. Plaintiff’s counsel states that Defendant’s failure to assert the lack of a Standard Disclosure and Acknowledgment Form immediately following the initial date of service, should estop the Defendant from making such an assertion after payment.
7. However, FLA. STAT. §627.736(4)(b) states, in pertinent part:
“This paragraph does not preclude or limit the ability of the insurer to assert that the claim was. . .in violation of subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim . . . .” (emphasis added)
8. As previously established in Jason Martin v. Progressive Auto Pro Insurance Company, 14 Fla. L. Weekly Supp. 394a (4th Judicial Circuit, Duval Cty., February 2, 2007), Defendant properly asserted its statutory right that the claim was in violation of FLA. STAT. §627.736(5), even after payment. See also Paul Mitchell v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 611a (4th Judicial Circuit, Duval Cty., April 1, 2008).
9. Plaintiff argues that the statutory language of Florida Statute § 627.736(4)(b) does not grant Defendant the ability to assert that a claim was in violation of subsection (5). Instead, it is argued by Plaintiff, that the relevant part of subsection (4)(b) only allows for an assertion that the amount of the charge was in excess of that permitted under subsection (5).
10. Florida Statute § 627.736(5)(e), which outlines the “minimum requirements” of a properly executed Disclosure and Acknowledgment Form and makes reference to subsection (4)(b).
11. This Court follows NW Broward Orthopaedic Associates, P.A. and MRI Radiology Network, P.A. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 740a (17th Judicial Circuit, Broward Cty., May 11, 2006) in finding that Plaintiff’s limited interpretation would render the Legislature’s reference to (4)(b) in subsection (5)(e) meaningless. Courts are not to presume that a given statute employs “useless language.” Johnson v. Feder, 485 So.2d 409 (Fla. 1986). Courts must instead “construe related statutory provisions in harmony with one another”. Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 455 (Fla. 1992).
12. Furthermore, there is no evidence before the Court to establish the necessary elements of estoppel. Plaintiff has not filed an affidavit, deposition transcript or other evidentiary documentation necessary for this Court to consider such an assertion.
13. A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist. Landers v. Milton, 370 So. 2d 368 (Fla. 1979).
14. As such, Defendant’s affidavit of Julie Selzer with attachments, filed in support of Defendant’s Motion for Summary Judgment, stands alone with no evidence on the record to establish a genuine issue of material fact.
15. This Court finds the language of Florida Statute §§ 627.736(4)(b) and 627.736(5)(e) are both clear.
16. There are no genuine triable issues of fact. The evidence is clear that Plaintiff did not furnish a Disclosure and Acknowledgment Form to Defendant, in violation of FLA. STAT. § 627.736(5)(e) and; therefore, did not provide Defendant with written notice of the fact of a covered loss pursuant to FLA. STAT. § 627.736(4)(b) and has failed to state a cause of action.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby Granted. This Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
