16 Fla. L. Weekly Supp. 347b

Online Reference: FLWSUPP 164MONGA

Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where it is undisputed that PIP policy had effective date well before sunset of PIP statute, D&A form requirement applies even though statute had sunset and was not in effect at time of initial date of service — No merit to argument that defects in D&A form can be overlooked where bills and records are sent contemporaneously — Further, resubmission of D&A form with changes made to description of services after form was signed does not comply with requirement that patient attest that services were actually rendered — No merit to argument that defective D&A form affects only first date of service; form is prerequisite to billing — Summary judgment entered in favor of insurer

JANE E. BISTLINE, MD PA (Bridgett Mongan), Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2008-SC-5790-XXXX-SB-RD. February 6, 2009. James L. Martz, Judge. Counsel: Joseph G. Murasko, North Palm Beach. Chad Christensen, Ellis & Ged, P.A., Boca Raton.

REVERSED at 17 Fla. L. Weekly Supp. 1001b

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND CONTAINING FINAL JUDGEMENT

COMES NOW, this Court and having considered Defendant’s Motion for Summary Judgement and Plaintiff’s Opposition, rules as follows:

1. This matter came before the Court on January 6, 2009. Defendant moved for Final Summary Judgement alleging Plaintiff’s failure to comply with the “Disclosure and Acknowledgment” requirement found at Florida Statute 627.736(5)(e). In support of its Motion Defendant filed the Affidavit of its claim representative Rachel Hamm which included the Florida Office of Insurance Regulation Standard Disclosure and Acknowledgment Form which was apparently executed by the patient Bridgett Mongan on October 15, 2007. Likewise, the form also appeared to contain the signature of Jane E. Bistline M.D. P.A. also dated October 15, 2007. However, the undisputed facts reveal that paragraph one, which requires a description of the treatment or services “actually rendered” was blank. The form was submitted again, appearing to contain the exact same date and signatures, however, paragraph one now contains a handwritten description “consult/procedure”. This second form, as evidenced by the Affidavit was submitted by Plaintiff under cover of letter dated December 10, 2007, and received by Defendant on December 29, 2007, well after the 35 day billing requirement set forth in Florida Statute Section 627.736(5)(c)1. Additionally, as evidenced by Defendant’s Affidavit, the form does not contain all of the services billed by the Plaintiff which also include apparently two CPT codes for injections and one CPT code for a diagnostic study.

2. The undisputed facts establish yet a third submission of what appears to be the exact same document however, the only service indicated in paragraph one is “consult”. This was submitted by an undated cover letter by Plaintiff however, by Affidavit it was received by Defendant on or about January 14, 2008.

3. Additionally, Defendant has filed the Plaintiff’s document production which contains bills including four line-item charges for date of service October 15, 2007, and; the first Disclosure and Acknowledgment form which is executed and dated as referenced above (and blank at paragraph one).

4. Defendant has also filed a certified copy of the Insurance Policy and Declarations Page indicating a policy effective date of February 9, 2007.

5. Plaintiff argues in opposition to the Summary Judgement Motion and has filed an Opposition Memorandum of Law pointing out and apparently it is undisputed, that an accident occurred on or about May 23, 2007. Plaintiff argues in Opposition to Summary Judgement on two alternative premises. First, the Florida No-Fault Statute was not in effect on the initial date of service of October 15, 2007. Second Plaintiff argues under several alternative theories the Disclosure and Acknowledgment Requirement is not a billing prerequisite. Specifically, Plaintiff argues that Florida Statute Section 627.736(5)(e) only applies to the manner of furnishing the form; or at best, would only apply to bar reimbursement for the initial date of treatment and not subsequent dates. In the alternative, the medical records and bills were furnished along with the form and therefore, the court should overlook the fact the form was incomplete.

ANALYSIS AND LAW

6. The glaring hurdle which Defendant must first overcome is whether the Statutory Disclosure and Acknowledgment Requirements, which are set forth in the Florida No-Fault Statute, would apply during a time when the Statute was not in effect. Pursuant to the Florida No-Fault Statute 627.736 as amended in 2003, the statutory No-Fault provisions sunset on October 1, 2007. The first date of service in this matter is undisputedly October 15, 2007. Defendant responds with the legal proposition that law in effect at the time an insurance contract was executed controls the terms of the policy. For this proposition Defendant cites to Lumbermens Mutual Casualty Company v. Ceballos, 440 So. 2d 612 (3rd District, 1983) and Hassen v. State Farm Mutual Automobile Insurance Company, 674 So. 2d 106 (Fla. 1996).

7. In Lumbermens, the question presented was whether an automobile insurance policy containing No-Fault coverage was governed by law in effect at the time the policy was issued or, by the law in effect at the time a claim arose. Specifically, Lumbermens dealt with the application of a September 1, 1977, statutory amendment to the No-Fault Statute which required certain disclosures to an insured who purchased a high deductible PIP policy. In Lumbermens, the insured purchased the $2,000.00 deductible policy before the amendment took effect. It was undisputed that the automobile insurer made no additional inquiry nor disclosure concerning collateral coverage as a substitute for the high deductible. Simply put, the Appellate Court observed “it is well settled in Florida that the statute in effect at the time the insurance contract is executed governs any issues arising under that contract” (Emphasis added).

8. This apparently well settled legal proposition was, in essence reaffirmed by the Florida Supreme Court in the Hassen case. Hassen dealt with the statutory revisions to the Uninsured/Under Insured Motorist Statute. The Florida Supreme Court observed “consistent with these rules of construction, it is generally accepted that the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract. See Lumbermens Mutual Casualty Company v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983), and cases cited therein.”

9. Turning to the undisputed facts in the matter before this Court, it is undisputed the insurance policy had an effective date of February 9, 2007, well before the sunset of the Florida No-Fault Statute. Accordingly, this Court finds as a matter of law that Defendant has met this preliminary hurdle.

10. The Court now turns to the Florida No-Fault Statute which was in effect as of February 2007. The Court observes two provisions of the Florida No-Fault Statute which cross reference each other and appear to incorporate each other by reference. First, Florida Statute Section 627.736(4)(b) states, in relevant part:

“Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after theinsurer is furnished written notice of the fact of covered loss and the amount of same.

. . .

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).” (Emphasis added).

11. Turning to Florida Statute Section 627.736(5)(e)(1) requires:

“At the initial treatment or services 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. . .”

12. Florida Statute Section 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).

13. Florida Statute Section 627.736(5)(e)(1)(d) states:

“That the physician. . . rendering services for which payment is being claimed explained the services to the insured. . .”

14. Florida Statute Section 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).

15. The interplay between subsections 4 and 5 is clear as they both cross reference each other. Additionally, Florida Statute Section 627.736(5)(c)1 requires, in relevant part as follows:

“. . .the statement of charges must be furnished to the insurer by the provider and may not include and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmarked date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant. . . The injured party is not liable for,and the provider shall not bill the injured party for, charges that are unpaid because of the providers failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.”

16. Turning to Plaintiff’s Opposition Memorandum and argument at hearing, Plaintiff urges this Court to follow other Trial Courts who have in essence held the reference in subsection 5, to subsection (4)(b) only applies to the manner of furnishing the form. Specifically, that mailing the form is permissible. The Court cannot overlook the fact that the text to the Florida No-Fault Statute is approximately 15 pages in length. The text of subsection 5 is approximately 6 pages in length. Although, paragraph (4)(b) does contain a single reference to the “United States Mail” however, that deals solely with calculating interest on overdue benefits. Moreover, paragraph 5(e) is nearly two pages in length.

17. Similarly, Plaintiff argues that defects on the form may be overlooked if the bills and records are submitted with the form. This overlooks the clear language of the statute. It would render the plain language of subsection (5), part (e) absolutely meaningless. The Florida Supreme Court, in Allstate Insurance Company v. Holy Cross Hospital, Inc., 961 So. 2d 328 (Fla. 2000) observes:

“As always, legislative intent is the polestar that guides a Court’s inquiry under the No-Fault law. Rodriguez, 808 So. 2d 85; Blish, 236 So. 2d at 1155. Such intent is derived primarily from the language of the statute. Cason v. Florida Department of Management Services, 944 So. 2d 306, 312 (Fla. 2006). “Where the wording of the [No-Fault] is clear and amenable to a logical and reasonable interpretation, a Court is without power to diverge from the intent of the legislature as expressed in the plain language. . .” Warren v. State Farm Mutual Automobile Insurance Company, 899 So. 2d 1090, 1095 (Fla. 2000) (quoting Rodriguez, 808 So. 2d 85).”

18. As such, the Court rejects Plaintiff’s argument that the defects may be overlooked where the bills and records were sent contemporaneously. Prior to the 2003 revisions to the Florida No-Fault Statute, there was no Disclosure and Acknowledgment Requirement and therefore, prior to 2003 submitting bills and records may have been sufficient. However, the legislature took great steps to incorporate the provisions found at 627.736(5)(e) into the Florida No-Fault Statute as amended 2003. Additionally, this Court observed that Defendant’s Affidavit was timely filed and there are undisputed issues of fact including some of the very same exhibits attached to Plaintiff’s Opposition Memorandum. It is abundantly clear that the re-submissions of the disclosure and acknowledgment form are doctored forms over and over again, adding information after the signatures, which would not suffice to comply with the statutory provisions. Specifically, attestation by the patient that the services were actually rendered. Moreover, Plaintiff’s letter dated December 10 acknowledges that the re-submission is a copy and not an original.

19. This Court rejects Plaintiff’s argument that the defective Disclosure and Acknowledgment form only affects the first date of service. The Disclosure and Acknowledgment form is a prerequisite to the billing requirement. Moreover, the egregious facts in this case including re-submitting a photocopy of an altered form, previously signed by the patient. Moreover, limiting application to the first date of service would circumvent the clear language of the statute in clear violations of 627.736(4) and (5). See Paul Mitchell v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 611 (4th Judicial Circuit, Duval County, April 2008); North Florida Medical Clinic, Inc. (as assignee of Margaret Pryor) v. Progressive Select Insurance Company, 14 Fla. L. Weekly Supp. 689 (4th Judicial Circuit, Duval County, May 1, 2007); R&C First Medical Center v. Progressive American Insurance Company, 15 Fla. L. Weekly Supp. 372 (9th Judicial Circuit, Orange County, December 13, 2007).

20. The Court finds in favor of Defendant on its Motion for Summary Judgement for failure to comply with the Disclosure and Acknowledgment Requirements as to all dates of service.

WHEREFORE, Defendant’s Motion for Final Summary Judgement is hereby Granted. Plaintiff, JANE E. BISTLINE, M.D., P.A. (PATIENT: BRIDGETT MONGAN) shall take nothing by this action and Defendant, USAA CASUALTY INSURANCE COMPANY shall go hence without day. The Court reserves jurisdiction to determine attorney’s fees and taxable costs to the Defendant, USAA CASUALTY INSURANCE COMPANY.