16 Fla. L. Weekly Supp. 271a
Online Reference: FLWSUPP 163MALAV
Insurance — Personal injury protection — Explanation of benefits — Compliance with insurer’s request in EOB for legible, identifiable office notes was condition precedent to suit for PIP benefits — Insurer was entitled to ask for and obtain documents even if medical provider contends that documents had already been submitted
ORLANDO PAIN & MEDICAL REHABILITATION CENTERS ALTAMONTE SPRINGS, INC., a/a/o Catalina Malave, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-4473. December 22, 2008. Donald L. Marblestone, Judge. Counsel: Mark Interlicchio. George Milev, Adams & Diaco, P.A., Tampa.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on December 4, 2008 on Defendant’s Motion for Summary Judgment and for Protective Order, and the Court having heard arguments by counsels for Plaintiff and Defendant and otherwise being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that
1. Defendant’s Motion for Summary Judgment is hereby GRANTED.
2. Catalina Malave was involved in a motor vehicle accident on 7/19/04.
3. Catalina Malave was covered under a policy of automobile insurance with Progressive Express Insurance Company (Progressive) at the time of the accident.
4. Plaintiff, through its physician, performed a new patient exam of Catalina Malave on 7/21/04 and billed Progressive $262 for the services.
5. Progressive received Plaintiff’s Health Insurance Claim Form (HCFA) on 8/20/04.
6. Upon receipt and review of the HCFA, Progressive sent an Explanation of Benefits (EOB) to Plaintiff on 8/25/04 with an explanation code: “Please submit legible, identifiable office notes for each date of service, including but not limited to every office visit and/or physical therapy session. All documentation submitted should be signed by the person rendering each service.”
7. Progressive made the above request pursuant to §627.736(6)(b), Fla. Stat. (2004).
8. Progressive made a timely written request via the EOB within thirty (30) days after receiving Plaintiff’s HCFA.
9. Plaintiff did not respond to Progressive’s request made via the EOB and instead filed a PIP lawsuit against Progressive on 12/23/04 alleging breach of automobile insurance contract.
10. Progressive filed its Motion for Summary Judgment arguing amongst other things that Plaintiff had no cause of action in the above lawsuit as the amount at issue was not overdue pursuant to §627.736(4) & (6)(b), Fla. Stat. at the time of filing of the lawsuit.
11. Plaintiff argued at the Summary Judgment hearing that the office notes/records requested by Progressive via the EOB were submitted with the initial bill sent to Progressive.
12. Plaintiff filed an Affidavit of its billing person attesting to such submission as a general office practice.
13. Plaintiff did not dispute that no documents were provided to Progressive in response to the EOB request and prior to filing of the lawsuit.
14. Plaintiff further argued that nothing in Subsection 6(b) of the PIP Statute authorizes an insurance company to request documents that allegedly already have been provided to the insurer.
15. §627.736(6)(b), Fla. Stat. (2004) in its pertinent part states “(e)very physician, hospital, clinic, or other medical institution. . .shall, if requested to do so by the insurer against whom the claim is made, furnish written forthwith report of the history, condition, treatment, dates, and costs of such treatment. . . together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injuries sustained. . . and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment” (emphasis added).
16. The plain and clear language of subsection 6(b) of the PIP Statute places no limitations to an insurer to request documents allegedly already in insurer’s possession.
17. Even if a provider contends that the documentation already has been submitted, an insurer is still entitled to ask for and obtain that documentation pursuant to Subsection(6) if the insurer believes that the documentation has not been received or what they have is insufficient.
18. Further, Progressive’s request via the EOB asking for “legible, identifiable office notes” can be interpreted as such that the office notes submitted with the initial bill, if any, were illegible and/or unidentifiable.
19. In addition, whether office notes were included with the initial bill is irrelevant to the fact that Plaintiff failed to provide any documents in response to Defendant’s request via the EOB pre-suit.
20. As Plaintiff had not provided any of the documentation requested via the EOB by Progressive prior to filing of the lawsuit, the amount at issue had not become overdue pursuant to §627.736(4) & (6)(b), Fla. Stat. and thus Plaintiff lacked cause of action in the current case.
21. Compliance with Progressive’s 6(b) request was a condition precedent to filing of the lawsuit and as Plaintiff failed to comply with that condition precedent the lawsuit is void ab initio.
22. Thus, Plaintiff shall take nothing by this action and Defendant shall go hence without day.
23. The Court reserves jurisdiction to entertain a Motion for attorney’s fees and costs by Defendant.
