16 Fla. L. Weekly Supp. 323a
Online Reference: FLWSUPP 164NORTH
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Insurer is not authorized to raise deficiency in D&A form after payment of initial bill or raise deficiency as defense to refuse payment of subsequent bills where neither the insured nor the medical provider were notified of deficiency before payment of initial bill — Provider was not required to submit corrected claim form within 35 days of insurer’s notice that claim was denied due to deficient claim form
NORTH FLORIDA MEDICAL CLINIC, INC., Plaintiff(s), vs. USAA CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-SC-13110. January 30, 2009. Roberto A. Arias, Judge. Counsel: Vincent P. Gallagher, BeachLifeLaw, LLC, Jacksonville Beach, for Plaintiff. James C. Rinnaman, III, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause, having come before the Court on Defendant’s Motion For Summary Judgment. The Plaintiff appeared through counsel, Mr. Vincent Gallagher, Esq. and Mr. James C. Rinnaman, III, Esq. appeared for the Defendant. Having heard arguments of counsel for the parties and having considered the memorandum of law and cases submitted, the Court finds that the Defendant’s Motion should be denied.
The Plaintiff filed this action to recover under the Florida Motor Vehicle No-Fault Law, Sections 627.730-627.7405, Florida Statutes. The Plaintiff alleges that the Defendant failed to pay for covered services rendered to the insured on April 16, 2007.
The Plaintiff sent Defendant a disclosure and acknowledgment (D&A) form which did not include a description of the medical services provided as required by §627.736(5)(e)(1)(a). The statement in question was submitted to the Defendant for payment, subsequent to the D&A form’s submission. The Defendant did not raise any objection to the D&A form at the time of its submission, nor at any other time when Plaintiff sent statements to Defendant. The Defendant first and only raised the D&A’s deficiency as a defense to this action.
The Plaintiff sent Defendant a timely statement for payment of the medical services rendered on April 16, 2007, in the form of a Health Insurance Claim Form (CMS 1500). The CMS 1500 submitted by Plaintiff was deficient, as it failed to include a professional license number and did not indicate that the injury was related to an automobile accident. Therefore, under §627.736(5)(d) the CMS 1500 failed to give notice of a covered loss under §627.736(4)(b) and the Defendant initially properly refused to pay this bill. This statement was denied by the Defendant on April 30, 2007. On September 13, 2007, approximately 4½ months after the Defendant sent Plaintiff the notice it was not paying the CMS 1500 (EOB), the Plaintiff resubmitted the corrected CMS 1500 for payment. The Defendant refused to pay the resubmitted bill as it maintained that, under §627.736(5)(c)(1), the corrected statement was untimely because the medical services had been “rendered more than 35 days before the postmark date of the statement.” At the time of the re-submission, there was coverage still available, under the policy of insurance, to pay the corrected CMS 1500.
The Defendant first argues that the statement in question was not due under §627.736(4)(b) because the initial D&A form was deficient and the Defendant can raise that insufficiency at any time, including as a defense to a lawsuit to cover damages herein. Secondly, the Defendant argues that the Plaintiff’s failure to re-submit the CMS 1500 within a reasonable time after it was notified by the Defendant that it was deficient. At the outmost, it argues the re-submission should be not more than 35 days after the denial of the claim, or the re-submission will be untimely, regardless of whether there was sufficient PIP benefits left to pay the re-submitted complete CMS 1500.
THE DEFICIENT D&A FORM
This Court has previously re-written an opinion dealing with deficient D&A forms and the timing of any defenses that can be raised, arising from this deficiency, within the statutory framework of the Florida Vehicle No-Fault law. In Donald W. Lowery, D.C. vs. Progressive Select Insurance Co., 16-2007-SC-006332, this Court held that §627.736(4)(b), Florida Statutes, did not authorize the insurer to raise deficiency in the D&A form after payment has been made nor raise that deficiency as a defense to refuse to pay subsequent statements, when the insured nor the medical provider were notified of the deficiency before payment of the initial statement. This Court reaffirms that holding and for the same reasons stated therein, the Defendant’s Motion For Summary Judgment on this ground should be denied.
Section 627.736(4)(b), Florida Statutes, also contains tolling provisions to the 30-day payment period within which the insurer is required to pay any statements for covered losses. Sub-Section (4)(b) in relevant part provides:
If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is one due if not paid within 30 days after such written notice is furnished to the insurer. Any part of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer.
This section provides that the insurer does not have to pay any part of the claim which is not supported by the written notice of the fact of a covered loss. However, if that part of the claim is subsequently supported by written notice, the insurance benefits will be overdue if not paid within 30 days after the written notice is furnished. Thusly, if the notice of claim or any part thereof is deficient, the 30-day payment period is tolled, until such time as the claim is properly supported by written notice. The issue presented herein is whether the Court should, as a matter of law, find that the Plaintiff/Medical provider’s written notice (the properly filled out CMS 1500) was untimely because it was not re-submitted within 35 days of its rejection by Defendant’s insurance company. In other words, the insurer wants this court to define “subsequently supported by written notice” to be read as imposing a requirement that such written notice be given “within 35 days”.
Nowhere in the Florida Vehicle No-Fault Law has the legislature established any time requirement within which the claim has to be resubmitted. The only time limits for the submission of bills are found in Section 627.736(c)(1), Florida Statutes, which requires that “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 postmark date or electronic transmission 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. . .the statement may include charges. . .up to . . .75 days before the postmark date of the statement”. The initial statement of charges was submitted timely, albeit through an improperly completed CMS 1500 form. It appears that the re-submission of statements, as the re-submitted CMS 1500 herein, may have been contemplated by the legislature when it provided one exception to the 35-day requirement in subsection (c)(1). The 35-day time limitation contains an exception “for past due amounts previously billed on a timely basis.” It is significant that the legislature did not use “overdue” to refer to these previously billed amounts because the legislature would have then clearly established that the exception would be applicable only to previous properly billed statements of charges, rather than just past due amounts. “Overdue” is used in subsection (4)(b) to define charges that are properly billed in compliance with all the requirements of subsection (5)(d). Therefore, while it may be argued that an improperly billed charge is “not due” and thus cannot be “past due”, it appears that this is what the Legislature intended. The only other charge that this exception could refer to would be properly and timely billed charges for which the exception would be needless, as these charges would have been payable and “overdue.”
Regardless of the above discussion, the Defendant’s motion is not well taken. There is no legal requirement that an insurer set aside a reserve fund for any claims which are reduced or denied, as the improperly filled out CMS 1500 form herein. Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008). Therefore, an insurer is free to continue to pay any and all properly documented claims it receives until the benefit fund runs out, regardless of the fact that an improperly filled out CMS 1500 form may have previously been submitted. However, if the benefits are not exhausted when the provider re-submits the properly filled-out CMS 1500 form, as in the case at bar, the Court cannot find any legal or logical basis why the insurer should not be required to pay these claims that are subject to the tolling provisions of subsection(4)(b). This Court is not free to add words to a statute, such as to add the additional requirement that any re-submission of bills should be made within a specific time period. Anderson Columbia v. Brewer, 994 So.2d 419 (Fla.1st DCA 2008). The Legislature plainly has provided a tolling provision as a vehicle for the re-submission of a statement “supported by written notice”, without any time specific limitation. This Court does not find any basis under which a Court would or should be permitted to intrude upon an area solely delegated to the legislative branch.
For all the above reasons the Defendant’s Motion for Summary Judgment is Denied.
