16 Fla. L. Weekly Supp. 1158b
Online Reference: FLWSUPP 1612ORTH
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where insured who was unaware of PIP coverage on initial date of treatment advised medical provider that there was no PIP coverage, provider could not and did not provide services upon which PIP claim could be based and was under no duty to have insured execute D&A form on initial date of treatment — Further, provider’s failure to submit bills to insurer within 35 days of treatment is not fatal to claim where insured gave provider wrong insurance information — Provider’s acts of having insured sign and return D&A form when PIP coverage was discovered, signing of returned form, and immediate submission of form and medical bills to insurer create issue of fact that precludes summary judgment
ORTHOPAEDIC CLINIC OF DAYTONA BEACH, P.A., as assignee for JOSEPH POWERS, Plaintiff(s) vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2008 33973 COCI. October 1, 2009. Stasia Warren, Judge. Counsel: Luis R. Gracia, for Plaintiff. Wendy Pepper, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause coming on to be heard upon Defendant’s Motion for Summary Judgment and the Court having reviewed legal authorities, considered the pleadings, affidavits, arguments of counsel, and being sufficiently advised on the premises, hereby finds and holds as follows:I. FACTS
1. This action involves Plaintiff’s claim against Defendant, USAA CASUALTY INSURANCE COMPANY (hereafter USAA), for personal injury protection (PIP) benefits relating to medical treatment provided to Joseph Powers.
2. Joseph Powers was involved in an automobile accident on May 27, 2007. At the time of the accident, Mr. Powers was covered by the personal injury protection provisions of a policy of insurance issued by USAA to Ms. Marcine Wells.
3. As a result of injuries resulting from the automobile accident, Mr. Powers sought medical treatment at the Orthopaedic Clinic of Daytona Beach on May 30, 2007. The Plaintiff obtained an assignment of insurance benefits from Mr. Powers on that day.
4. According to an affidavit submitted by the Plaintiff and
executed by Joseph Powers, Mr. Powers was unaware that he was covered for PIP benefits under the policy issued to Ms. Wells by Defendant USAA. As a result, he advised the Plaintiff that he was not eligible to receive PIP benefits as he did not own a vehicle at the time of his auto accident nor did he have any automobile insurance at all to cover him for medical treatment related to the crash.
5. Pursuant to the information referenced above, the Plaintiff classified Mr. Powers as an uninsured driver for purposes of PIP coverage and attempted to get the treatment qualified under the Emergency Department of Surgical Services (EDSS) program, which is designed to assist indigent individuals with medical treatment. This information is readily apparent from the Patient Information sheet filed by the Plaintiff as an exhibit to the affidavit submitted in opposition to Defendant’s motion. It is undisputed, as well as admitted by the Plaintiff on May 29, 2009 in a reply to a Request for Admissions, that neither Mr. Powers nor Mr. Powers’ treating physician, Dr. Malcolm Gottlich, signed a disclosure and acknowledgement form on May 30, 2007. It is also undisputed that the Plaintiff did not provide USAA a medical bill for services rendered to Mr. Powers within 35 days of the day of initial treatment.
6. As stated in the affidavit filed by the Plaintiff, on or about July 23, 2007, Mr. Powers was informed by Marcine Wells that he was covered for PIP benefits by USAA under policy number 002577268071032. Until that day, he was unaware that he was covered for PIP benefits. Mr. Powers also stated in the affidavit that he then provided an insurance card to the Plaintiff either by mail or fax.
7. Upon receipt of the insurance card, the Plaintiff mailed Mr. Powers a standard disclosure and acknowledgement form as mandated by § 627.736(5)(e) of the Florida Statutes. According to his affidavit testimony, Mr. Powers received the form on or about July 29, 2007, executed it and returned it to the Plaintiff within a couple of days. The form was then signed by Dr. Gottlich on August 4, 2007, the date when the Plaintiff allegedly received the form signed by Mr. Powers. The disclosure and acknowledgment form was attached by the Defendant as an exhibit to the Motion for Summary Judgment and is part of the court record.
8. After learning that Mr. Powers was in fact covered for PIP benefits, the Plaintiff submitted medical bills to USAA for treatment rendered to him resulting from the automobile accident. However, USAA denied payment of the bills because the disclosure and acknowledgment form provided by the Plaintiff was not signed by either the patient or the treating physician on the initial date of treatment.
9. As the charges were not paid by the Defendant, Plaintiff filed the present action.
10. The Defendant has moved for Summary Judgment alleging that the Plaintiff’s failure to submit a properly signed standard disclosure and acknowledgement on the date of the initial treatment did not place the Defendant on notice of a covered loss and, as a result, the Plaintiff is barred from collecting medical bills from the Defendant. Plaintiff argues that the facts and circumstances of this case did not create a duty for the provider to execute the form at the initial treatment and that it would have been impossible for the Plaintiff to submit the form to USAA. Plaintiff also argues that the PIP statute does not foreclose the ability of a provider to be compensated by way of PIP benefits simply because it had the incorrect PIP information.
II. CONCLUSIONS OF LAW AND RULING
11. As the Defendant is moving for Summary Judgment, this court has to resolve whether there is any issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. Dr. Phillips, Inc. vs. L&W Supply Corp., 790 So.2d 539 (Fla. 5th DCA 2001). The court must consider the evidence contained in the record, including any supporting affidavits, in the light most
favorable to the non-moving party. Id.
12. Section 627.736(5)(e) states in pertinent part:
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.
2. The physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed has the affirmative duty to explain the services rendered to the insured, or his or her guardian, so that the insured, or his or her guardian, countersigns the form with informed consent.
3. Countersignature by the insured, or his or her guardian, is not required for the reading of diagnostic tests or other services that are of such a nature that they are not required to be performed in the presence of the insured.
4. The licensed medical professional rendering treatment for which payment is being claimed must sign, by his or her own hand, the form complying with this paragraph.
5. The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not he electronically furnished.
13. As subsection (e)1 plainly states, a disclosure and acknowledgement form has to be executed at the initial treatment of medical services “upon which a claim for personal injury protection benefits is based”(emphasis added). Indeed, it is clear that the requirement for the form derives solely from the No-Fault Act.
14. In this case the evidence of record seen in the light most favorable to the non-moving party clearly indicates that. the Plaintiff, as a result of not having any PIP insurance information at all at the initial treatment of the insured, Mr. Powers, did not and could not provide medical services upon which a PIP claim could be based. In fact, the evidence suggests that the treatment was going to be qualified under the EDSS program. The court agrees with the Plaintiff that since Mr. Powers stated at the initial visit that he was not eligible for any PIP coverage and no PIP insurer was disclosed, the Plaintiff was under no duty to have him execute a disclosure and acknowledgement form. Further, for the same reason, the Plaintiff factually could not provide said form to USAA, or any other insurer for that matter, as there was no insurance carrier available for the form to be submitted. To require a medical provider to follow requirements of the PIP statute when no PIP coverage is available or even known is unnecessary. “A statute should be given a reasonable interpretation. No literal interpretation should be given which leads to an unreasonable or ridiculous conclusion.” Johnson v. Presbyterian Homes of the Synod of Florida, Inc., 239 So. 2d 256 (Fla. 1970). See also DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So.2d 971 (Fla. 4th DCA 2002), holding that “it is well-established in Florida that statutes, even where clear, should not be interpreted to produce absurd results” and Johnson v. Beary, 665 So. 2d 334 (Fla. 5th DCA 1995), holding that “construction of a statute which would lead to an absurd result should be avoided.”
15. The court also takes note that the inability of a medical provider to submit a bill within the time period specified in the PIP statute is not fatal to the provider’s ability to receive payment for medical services as long as the insured/patient gave the provider the wrong insurance information.
16. Florida Statute § 627.736(5)(c)2 indicates in relevant part that if “the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with a statement of the charges”. In this case, the insured not only failed to provide the provider with the correct name of his PIP insurer; it simply did not provide the Plaintiff with any PIP carrier information at all. There is no record evidence indicating that Plaintiff failed to timely bill and provide the disclosure and acknowledgement form immediately after learning of the availability of PIP insurance in the matter. It seems incongruous that the PIP statute would allow providers with the wrong insurance information to still be able to be paid for their services even after the original time period to submit bills has elapsed but providers that are mistakenly given no insurance information at all are precluded from billing.
17. USAA argues that the form was also not signed properly as the insured/patient and the physician have to execute it the same day in order to comply with Section 627.736(5)(e)2. It argues that the purpose behind such requirement is to avoid fraud.
18. It is clear that the requirement of the disclosure and acknowledgment form is indeed to prevent fraud. The content of the standard form make such obvious. USAA argues that the Plaintiff’s failure to submit the form and to have it signed by the patient and treating physician at the initial treatment violates the policy behind the form’s requirement. However, there is no evidence of record demonstrating that the Plaintiff failed to give the directives mandated in the statute at the initial treatment. Further, Dr. Gottlich signed the form in his own hand as required by the statute. Plaintiff’s counsel argued that such signature was made by the physician immediately upon receipt of the disclosure and acknowledgment form and that the timeline shown in the affidavit affirms that allegation. No evidence of record rejects that argument. Indeed, the Plaintiff argued, and the court notes, that no actual testimony has been taken in the case from any of Plaintiff’s or Defendant’s representatives, from Mr. Powers or Marcine Wells to be made part of the record. In any case, the reason why the disclosure and acknowledgment form was not signed by the patient and the treating physician simultaneously at the initial treatment is because no PIP information triggering the requirement of executing the form was available.
19. USAA presented several county court orders which stand for proposition that a medical provider’s failure to strictly comply with the disclosure and acknowledgment form requirement of Section 627.736(5)(e) bars a subsequent PIP claim. See First Coast Medical Center, Inc., a/a/o Sederia Tyson vs. State Farm Mutual Automobile Insurance Company [16 Fla. L. Weekly Supp. 176a], Paul Mitchell v. Progressive Select Insurance Company [15 Fla. L. Weekly Supp. 611a], Polina Nosel, M.D., a/a/o Renal Jean-Louis, vs. United Automobile Insurance Company [12 Fla. L. Weekly Supp. 1190a], Asclepius Medical Inc., a/a/o Joel Lopez Rivero, vs. U.S. Security Insurance Co. [12 Fla. L. Weekly Supp. 778b], St. Lucie Injury Center (Astrid B. Ebner) vs. USAA Casualty Insurance Company [16 Fla. L. Weekly Supp. 773a] (all FLW Supp. citations omitted [editor’s note: cites provided in brackets]). However, those cases are factually distinguishable from the case at bar. The recurrent theme in the cases cited by the Defendant is the failure of a provider, which has all the information necessary to realize that any claims for medical treatment will be based on PIP benefits, to properly execute the disclosure and acknowledgement form by either not signing the form initially, by failing to have the patient do the same or by not providing the form to the carrier. This is simply not the case here.
20. As stated above, the affidavit presented shows that the Plaintiff received no insurance information whatsoever at the initial treatment of Mr. Powers. Upon learning that PIP coverage existed, the provider had the patient/insured sign the acknowledgment and disclosure form. The patient/insured signed the form and returned it to the Plaintiff. The treating physician signed the form with his own hand and said form was immediately provided to USAA along with medical bills. As the affidavit shows that the initial treatment in this matter did not present a scenario where “medical services upon which a claim for personal injury protection benefits” would or could be based, Plaintiffs submission of the disclosure and acknowledgment form at the moment PIP coverage was disclosed creates an issue of fact that precludes entry of Final Summary Judgment.
Based upon the foregoing it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is hereby DENIED.
