16 Fla. L. Weekly Supp. 341a
Online Reference: FLWSUPP 164HERRA
Insurance — Personal injury protection — Claim form — Despite misplacement of license number in box 33 instead of box 31, claim form was substantially complete and accurate — Insurer’s motion for summary judgment denied
HIALEAH DIAGNOSTIC, INC. D/B/A HIALEAH WELLNESS & REHAB CENTER, a Florida Corporation (assignee of Herrand, Geovanny), Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-32530 CC 23 (02). February 4, 2009. Caryn Canner Schwartz, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Charles Chaplin, Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Re: License Number in Box 31 & Form not Hand Signed)
THIS CAUSE, came before the court for hearing on February 4, 2009, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. case. Defendant moves for summary judgment, alleging that it is relieved of its obligation to pay the Plaintiff’s claim based upon the following facts: (1) that the treating physician’s name is type written in box 31 of the bills instead of hand signed and (2) that the treating physician’s license number is listed in box 33 instead of box 31 of the bills. Plaintiff responds that: (1) The type-written name and credentials of the physician are sufficient; (2) that Plaintiff substantially complied with F.S. s. 627.736(5) by listing the treating physician’s license number in box 33 instead of box 31 and 3) that Defendant waived or is estopped from asserting the defense based upon its failure to provide an explanation of benefits complaining of the alleged defect so that Plaintiff would have notice and an opportunity to cure.
Conclusions of Law: This court finds that the Plaintiff’s type written inclusion of the physician name and credentials (coupled with the listing of the physician license number in box 33 of each HCFA form) was sufficient to meet the requirements of F.S. s. 627.736(5)(d). F.S. s. 627.736(5)(d) does not call for the form to be hand signed by the physician. The express terms are that the form contain the name, credentials and license number of the physician.
As to the inclusion of the license number in Box 33 instead of box 31, the court finds that the Defendant was provided actual notice of the required information and the form was therefore “substantially complete, and substantially accurate [. . .] as to all material elements. See, e.g., Elias Garcia v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 888b (Decision of Judge Robert W. Lee, Broward County 2005) (attached) (holding “The Defendant was clearly provided all information needed to process the claim. As a result, the Court finds that the stamped facsimile signature and inclusion of the physician’s license in Box 33 rather than Box 31, without any other defects in the form, lead to the conclusion that the CMS form is ‘substantially complete, and substantially accurate [. . .] as to all material elements.’ ”).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is DENIED.
