16 Fla. L. Weekly Supp. 175c
Online Reference: FLWSUPP 162LAHOD
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Medical provider that provided insurer with self-generated D&A form that lacked physician’s affirmations, failed to identify services provided and was not standard form promulgated by Department of Financial Services did not provide insurer with notice of covered loss — Insurer did not waive defective D&A form defense by asserting in explanation of benefits that denial of claim was based on peer review/independent medical examination
MARITZA LAHODIK, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2006-SC-10736, Division A. June 12, 2008. Emmet F. Ferguson, III, Judge. Counsel: Kelly B. Hampton, for Plaintiff. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: IMPROPERDISCLOSURE AND ACKNOWLEDGMENT FORM
THIS CAUSE, came to be heard on June 2, 2008, on Defendant’s Motion for Partial Summary Judgment re: Improper Disclosure and Acknowledgment Form. Present before the Court appeared counsel for Defendant, James B. Eubanks, Esquire, with counsel for Plaintiff, Kelly B. Hampton, Esquire. Haying considered the arguments of counsel, all relevant authority, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law.
1. On or about December 18, 2006, Plaintiff, Maritza Lahodik, filed this case sub judice, regarding non-payment of No-Fault benefits for services rendered to the insured on five dates of service, from three different medical providers. Edward Franco, M.D., at Imaging Center at Lakewood rendered one such date of service to Plaintiff on October 18, 2005. See Paragraph 10 of Plaintiff’s Complaint.
2. October 31, 2005, Defendant received billing and supporting documentation from Imaging Center at Lakewood containing a self-generated “Disclosure and Acknowledgment PIP Treatment Form,” rather than utilizing the standard form authored and adopted by the Office of Insurance Regulation.
3. Florida Statute § 627.736(4)(b) states, in pertinent part:
“Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss . . . .” “This paragraph does not preclude or limit the ability of the insurer to assert that the claim was. . . in violation of subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim . . . .” (Emphasis added)
4. Florida Statute § 627.736(5)(e) requires that:
“At the initial treatment or service 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 . . . ” and “ . . . the form shall be furnished to the insurer pursuant to paragraph (4)(b) . . . .” (Emphasis added)
5. Further, Florida Statute § 627.736(5)(e)(1) states as follows:
“The insured . . . must countersign the form attesting to the fact that the services set forth therein were actually rendered.” (emphasis added); “The insured . . . has both the right and affirmative duty to confirm that the services were actually rendered.” (emphasis added); and “That the physician . . . rendering services for which payment is being claimed explained the services to the insured . . . ” (Emphasis added)
6. Additionally, Florida Statute § 627.736(5)(e)(7) states that:
“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 standard disclosure and acknowledgment form contains a section of five affirmations of the patient, including a blank line for the description of the services rendered, and a section of four (a-d) affirmations of the treating physician.”
7. Plaintiff argues that it has substantially complied with the requirements of Florida Statute § 627.736(5)(e) by listing all the insured’s affirmations, and having the signature of the insured and treating physician.
8. However, it is undisputed, that Imaging Center at Lakewood’s form did not list or describe the “services set forth therein” as required by Florida Statute § 627.736(5)(e)(1)(a), did not use the proper form as required by Florida Statute § 627.736(5)(e)(7), nor did it contain a section of affirmations of the treating physician, Edward Franco, M.D., as required by Florida Statute § 627.736(5)(e)(2), (7). Therefore, the Form has not substantially complied with the statutory requirements.
9. Prior to the hearing, an Affidavit of Edward Hulsey, a Litigation Specialist at Progressive Express Insurance Company, was filed with the Court attesting to the non-compliant “Disclosure and Acknowledgment PIP Treatment Form” received by Defendant from Imaging Center at Lakewood.
10. Plaintiff argues, in the alternative, that the standard form promulgated by the Department of Financial Services is a mere suggestion and is not required. The Court disagrees with Plaintiff’s contention.
11. The Court is not persuaded by Plaintiff’s argument. The statutory language is clear and unambiguous, the standard form promulgated by the Department of Financial Services must be used, and in such, the services provided must be stated on the form. The legislature is assumed to have expressed its intent through the words found in the statute. If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th Dist. Ct. App. 2000).
12. Plaintiff also asserts that Defendant’s medical claims representative waived its right to assert this defense by its September 21, 2006 response to Plaintiff’s demand letter. Defendant stated, “We are upholding the denial of the MRI for the Imaging Center. . .based on the peer review/IME. . . .”
13. Florida Statute § 627.736(4)(b), states in pertinent part that an insurer can assert that a claim is in violation of Florida Statute § 627.736(5), at any time. (Emphasis added)
14. Plaintiff has not provided any evidence, through deposition testimony or otherwise, as to Defendant’s waiver and this Court further finds that Defendant properly asserted this statutory right in compliance with the statute.
15. This Court finds that there are no genuine triable issues of fact and the evidence is clear that Imaging Center at Lakewood created a non-compliant Disclosure and Acknowledgment Form lacking Dr. Franco’s affirmations, the services provided were not identified and the standard form promulgated by the Department of Financial Services was not used. Therefore, Imaging Center at Lakewood did not provide Defendant with written notice of the fact of a covered loss pursuant to Florida Statute § 627.736(4)(b), (5)(3).
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, MARITZA LAHODIK, take nothing with regard to services provided by Dr. Franco at the Imaging Center at Lakewood, by this action, and Defendant PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence without delay and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
