16 Fla. L. Weekly Supp. 1081d
Online Reference: FLWSUPP 1611LAZA
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Use of self-generated D&A form that fails to contain required language of standard form promulgated by Department of Financial Services failed to place insurer on notice of covered loss — No merit to argument that defective D&A form only invalidates claim for initial date of service
JEFFREY COHEN, DC PA (Brian Lazarus), Plaintiff(s), vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RS. Case No. 2008 SC 012861 SB. August 27, 2009. Janis Brustares Keyser, Judge. Counsel: Joseph G. Murasko, Vernis & Bowling of Palm Beach, P.A., North Palm Beach. Joseph Littman, Boca Raton.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on Defendant’s Motion for Summary Judgment. The Court has reviewed Defendant’s motion, affidavit of Defendant’s claim representative, Plaintiff’s memorandum in opposition, affidavits of Dr. Jeffrey Cohen, D.C. and Brian Lazarus, and applicable case law and having heard oral argument at the hearing held on August 21, 2009, finds as follows:
Defendant’s Motion for Summary Judgment alleges that Plaintiff failed to comply with the “Disclosure and Acknowledgment” requirement set forth in Section 627.736(5)(e), Florida Statutes. It is undisputed that Plaintiff submitted its initial bill with a self-generated Patient Disclosure and Acknowledgment form dated May 24, 2008, rather than the form adopted by the Financial Services Commission. The form submitted by Plaintiff does not contain the required attestation that the patient was not solicited by “any person,” nor does it contain the caveats and disclosures regarding criminal penalties for defrauding an insurance company and the warnings at the bottom of the Office of Insurance Regulations Standard Disclosure and Acknowledgment form.
The affidavit of Dr. Jeffrey Cohen, D.C. and the patient, Brian Lazarus, states that the patient was not solicited by any person. Dr. Cohen’s affidavit further states that it was his understanding that his disclosure and acknowledgment form complied with the Florida no fault statute requirements.
Section 627.736(5)(e), Florida Statutes, provides, in pertinent 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;
b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered;
c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider;
d. The physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and
e. If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured’s motor vehicle insurer.
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7. The Financial Services Commission shall adopt, by rule, a standard disclosure and acknowledgment form that shall be used to fulfill the requirements of this paragraph, effective 90 days after such form is adopted and becomes final. The commission shall adopt a proposed rule by October 1, 2003. Until the rule is final, the provider may use a form of its own which otherwise complies with the requirements of this paragraph.
The Court finds the foregoing language to be clear and unambiguous and requires that the standard form promulgated by the Department of Financial Services must be used and, therefore, the self-generated form dated May 24, 2008, failed to place Defendant on notice of the claim as a matter of law. See Paul Mitchell v. Progressive Select Ins. Co., 15 Fla. L. Weekly Supp. 611a (4th Judicial Circuit, Duval County, April 1, 2008); Jason Martin v. Progressive Auto Pro Ins. Co., 14 Fla. L. Weekly Supp. 394a (4th Judicial Circuit, Duval County, February 2, 2007); Roberts Orthopedic Clinic v. Progressive American Ins. Co., 15 Fla. L. Weekly Supp. 751 (18th Judicial Circuit, Seminole County, March 19, 2009). The self-generated form at issue in this case, which fails to contain the required language that the insured was “not solicited by any person” and also fails to contain the caveats and disclosures regarding criminal penalties for defrauding an insurance company and the warnings at the bottom of the standard form, does not substantially comply with the spirit and intent of the PIP statute and, therefore, the cases relied on by Plaintiff are distinguishable from the facts of this case.
Plaintiff asserts that any defect contained in the form would only invalidate the services for the initial date of service. The Court finds that limiting application to the first date of service would circumvent the clear language of the statute in violation of section 627.736(4) and (5), Florida Statutes. See Bistine v. USAA Casualty Ins. Co., 16 Fla. L. Weekly Supp. 347 (15th Judicial Circuit, Palm Beach County, February 6, 2009) (no merit to argument that defective disclosure and acknowledgment form only affects first date of service); North Florida Medical Clinic, Inc. v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 689 (4th Judicial Circuit, Duval County, May 1, 2007) (where the disclosure and acknowledgment form is not properly completed and submitted, no subsequent dates of service are payable); St. Lucie Injury Center, Inc. v. USAA Casualty Ins. Co., 16 Fla. L. Weekly Supp. 773 (15th Judicial Circuit, Palm Beach County, June 17, 2009) (without a sufficient disclosure and acknowledgment form, there is no subsequent date of service).
As noted by the Florida Supreme Court in Allstate Insurance Company v. Holy Cross Hospital, Inc., 961 So. 2d 328 (Fla. 2000):
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).
The plain language of Section 627.763(5)(e), Florida Statutes, indicates that the disclosure and acknowledgment form requirements are mandatory and an integral part of the claim process. The Court finds the insured is not prejudiced, since where the medical provider has not complied with the legal requirements to submit the bill pursuant to Section 627.736(5)(b)(1)(b), neither the insurer nor the insured are responsible for payment. It is therefore
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff, JEFFREY COHEN, DC PA, 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.
