16 Fla. L. Weekly Supp. 355a
Online Reference: FLWSUPP 164VICTO
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — No merit to insurer’s claim that medical provider forfeited right to benefits by providing D&A form that failed to define actual services provided where D&A form with attached CMS 1500 and notes for treatment substantially complied with statute and placed insurer on notice of actual services provided; there is no prejudice to insurer, which conceded that treatment was reasonable, related and necessary; D&A form is not condition precedent to filing suit; insurer did not cite defective D&A form in explanation of benefits, and provider submitted second D&A form that described actual services provided
M R S SPORTS MEDICINE INC., as assignee of Christina Victoria, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-19871, Coce 55. February 12, 2009. Sharon L. Zeller, Judge. Counsel: Cris Evan Boyar, Boyar & Freeman, P.A., Margate, for Plaintiff. Miriam Merlo.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 20, 2008, after due notice to the parties, on Plaintiff’s Motion for Summary Judgment, and the Court, having heard arguments of counsel, and being otherwise fully apprised in the premises, it is ORDERED AND ADJUDGED, as follows:
1. Upon consideration, the court finds there is no genuine issue of material fact and that the plaintiff is entitled to judgment as a matter of law.
2. The Defendant’s affirmative defense asserts the Plaintiff failed to fulfill a condition precedent to filing suit. Specifically, the Plaintiff failed to provide a Disclosure and Acknowledgment Form pursuant to “F.S. 627.736(e), i.e. the Disclosure and Acknowledgment Form did not define the actual services provided.”
3. A review of the deposition of USAA’s adjuster, Deborah Bradford, filed in support of Plaintiff’s Motion for Summary Judgment, shows that USAA admitted the Disclosure and Acknowledgment Form had attached to it the CMS 1500 (HCFA Bill) along with the notes for treatment. These documents were all provided to the Defendant within 35 days of the treatment. The bill reflects services performed for physical therapy services only. The disclosure and acknowledgment form was signed by a registered physical therapist. There was a prescription for physical therapy attached. The assignment of benefits that were attached was for Advanced Physical Therapy.
4. As such, the Court finds that USAA was on notice by the Disclosure and Acknowledgment Form combined with the attached bills, records and notes of the physical therapy treatment rendered to the plaintiff on the first date of treatment.
5. Although USAA’s affirmative defense contends the Disclosure and Acknowledgment Form “did not define the actual services provided,” the Form substantially complies and placed USAA on notice of the actual services provided.
6. There is no showing of prejudice to USAA, particularly where there is no other remaining issue and USAA has conceded the necessity, reasonableness and relatedness of the bills in question.
7. The Court disagrees with USAA’s position that the Disclosure and Acknowledgment Form is a “condition precedent” to filing suit. First, the Legislature has not expressly made the Disclosure and Acknowledgment Form a “condition precedent” as it has with the Demand Letter requirement of subsection 10. Second, the Florida No Fault law must be construed liberally in favor of coverage and in favor of the insured. See, Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986). Third, USAA’s interpretation of the Disclosure and Acknowledgment requirement as a “condition precedent” to filing suit would result in a denial of access to the courts.
8. The Court notes that although USAA replied with an explanation of reimbursement, as set forth in the affidavit of USAA’s adjuster, no explanation of the defect claimed by USAA was given. The Court further notes that in the deposition of USAA’s adjuster, USAA admits to receipt of another Disclosure and Acknowledgment Form which included the services described, but chose not to acknowledge its validity. As such, it appears that USAA is treating plaintiff’s submission of the original Form as a forfeiture. Forfeitures are not favored under Florida law.
9. Accordingly, Plaintiff’s motion for summary judgment is hereby Granted.
