16 Fla. L. Weekly Supp. 867a
Online Reference: FLWSUPP 169LOPEZ
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form that listed “initial visit” as services rendered on first date of treatment substantially complied with statutory D&A form requirement where CMS-1500 form and medical records fully listing specific therapies rendered were submitted with D&A form
GABLES INSURANCE RECOVERY, INC., a/a/o Alexander Lopez, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-2014 CC 21. July 1, 2009. Ana Maria Pando, Judge. Counsel: Anthony L. Tolgyesi, Tolgyesi & De La Rosa-Tolgyesi, P.A., Coral Gables. Jon E. Sorenson, Miami Gardens.
UNOPPOSED ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO AFFIRMATIVE DEFENSES OF DEFECTIVE DISCLOSURE & ACKNOWLEDGMENT FORM
THIS CAUSE, came before the Court on June 15, 2009, for hearing on the Defendant’s Motion for Summary Judgment on the Affirmative Defenses of Defective Disclosure & Acknowledgment Form, and the Court having reviewed the Motion and the entire Court file; heard argument of counsel; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
BACKGROUND
This case involves a claim for Personal Injury Protection Benefits pursuant to a policy of insurance issued by the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY. The Plaintiff, Gables Insurance Recovery, Inc., (hereinafter referred to as “GIR”), filed the instant action seeking payment for reasonable, related, and medically necessary treatment rendered to Alexander Lopez, by ET Rehabilitation Center, Inc., as a result of the motor vehicle accident of July 11, 2007. The Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, in its Amended Answer and Affirmative Defenses raises an Affirmative Defense alleging that the present action should be barred based on an allegedly defective Disclosure & Acknowledgment Form.
FINDINGS OF FACT BY THE COURT
For purposes of this Motion for Partial Summary Judgment, the claimant, Alexander Lopez, was involved in a motor vehicle accident which occurred on July 11, 2007, in Miami-Dade. The Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, issued a policy of insurance affording Personal Injury Protection benefits to insured, Alexander Lopez.
On July 19, 2007, ET Rehabilitation Center, Inc., began rendering medical treatment to Alexander Lopez, as a result of injuries sustained in the motor vehicle accident of July 11, 2007. On that same date a Standard Disclosure & Acknowledgment Form was completed listing the following services in Section 1, “Initial Visit”. The Standard Disclosure & Acknowledgment form was submitted by ET Rehabilitation Center, Inc., together with an Notice of Initiation of Treatment, which was followed by the CMS 1500 forms for the initial date of service, the handwritten notes of the initial evaluation which included a physician prescription for physical therapy, and the physical therapy notes, to the Defendant United Automobile Insurance Company.
CONCLUSIONS OF LAW
The Florida Rules of Civil Procedure, specifically rule 1.510(c), permits a moving party to Summary Judgment if the “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law”. On a motion for Summary Judgment, the moving party has the burden of proving the non-existence of genuine triable issues. Holl v. Talcott, 191 So. 2d 40 (Fla. 1996); Daeda v. Blue Cross & Blue Shield of Florida, 698 So.2d 617 (Fla. 2nd DCA 1997); Woodruff v. Government Employees Insurance, 669 So.2d 1114 (Fla. 1st DCA 1996). The moving party must show that he is entitled to judgment as a matter of law by resolving all factual matters, doubts and inferences against him. Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2nd DCA 1960).
The issue before the Court is whether the pleadings on file and record evidence properly before this Court establish that the Disclosure & Acknowledgment Form, which states “Initial Visit” as the services provided on the first date of treatment is as a mater of law defective as alleged in Defendant’s Affirmative Defenses, and whether the Affirmative Defenses of Defective Disclosure & Acknowledgment Form as raised by the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, have been rebutted as a matter of law.
The requirement of a Disclosure and Acknowledgment Form is set forth in Florida Statute §627.736(5)(e), which states in relevant part;
(e) 1. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered;
In the preset case, ET Rehabilitation Center, Inc., completed and submitted a Disclosure and Acknowledgment Form. According to the Defendant’s Affirmative Defense, the only alleged defect in the Disclosure and Acknowledgment Form is the failure to include the physical therapy modalities provided on the initial date of service in section 1 of the form.
By virtue of having submitted the CMS 1500 form, the D & A Form, together with the medical records, the Defendant was given full notice of the specifics of the treatment rendered on that first day. In short, the Defendant suffered absolutely no prejudice by Section 1 listing only “Initial Visit”, particularly when the CMS 1500 form and medical records were submitted with the D & A form.
The Courts of this jurisdiction have found substantial compliance with the requirements of Florida Statute §627.736(5)(e), sufficient. See; Kendall South Medical Center a/a/o Esteves v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp 91b, October 23, 2007, although section 1 of the form was not properly completed, submission of the Disclosure and Acknowledgment Form together with the HCFA Forms for the initial date of service constituted “substantial compliance” and therefore complied with the requirements of the Statute regarding submission of the Disclosure and Acknowledgment Form; South Miami Health Center a/a/o Lidia Gomez v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp 619a, April 6, 2006, Miami-Dade County, Judge Andrew S. Hague; Plaintiffs submission of the Disclosure and Acknowledgment Form together with the HCFA Forms for the initial date of service constituted “substantial compliance” and therefore complied with the requirements of the Statute regarding submission of the Disclosure and Acknowledgment Form; South Miami Health Center a/a/o Lazaro Alcarraga v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 826a, May 31, 2006, Miami-Dade County, Judge Andrew S. Hague; the Court held that the Plaintiffs submission of the Disclosure and Acknowledgment Form together with the HCFA Forms for the initial date of service constituted “substantial compliance” and therefore complied with the requirements of the Statute regarding submission of the Disclosure and Acknowledgment Form; United Automobile Insurance Company v. Adriana Amador, 15 Fla. L. Weekly Supp. 320a, February 15, 2008, the 11th Judicial Circuit Court in its Appellate capacity, ruled that although section 1 of the Disclosure and Acknowledgment Form was left blank, the submission of the Disclosure and Acknowledgment Form to the insurer together with the CMS 1500 Forms for the initial date of service and medical records, constituted “substantial compliance” and therefore complied with the requirements of the Statute regarding submission of the Disclosure and Acknowledgment Form.
Accordingly, it is hereby ORDERED AND ADJUDGED that;
The Plaintiff’s Motion for Summary Judgment as to the Defendant’s Affirmative Defenses of Defective Disclosure & Acknowledgment Form is hereby granted.
