16 Fla. L. Weekly Supp. 754a
Online Reference: FLWSUPP 168BLACK
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where medical provider was given notice that D&A form, which lacked list of services actually rendered, was so deficient as to not put insurer on notice of covered loss, provider was required to correct deficiency before statements sent to insurer for subsequent dates of treatment could legally put insurer on notice of loss — Provider’s concern that insurer would refuse to pay any bills regardless of resubmission of properly completed D&A form was premature and unwarranted
PAIN RELIEF ASSOCIATES, INC. (ASSIGNEE, BLAIR BLACKARD), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2008-SC-8521, Division B. June 23, 2009. Roberto A. Arias, Judge. Counsel: Bruce H. Kauffman, Orlando, for Plaintiff. James B. Eubanks, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
AMENDEDORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be heard on March 19, 2009 upon the Defendant’s Motion for Summary Judgment. Present before the Court appeared Bruce Kaufman, Esq. for Plaintiff and James B. Eubanks, Esq. for Defendant. The Court heard and has considered the arguments of counsel, reviewed the pleadings, motions and evidence before the Court.
FACTS
On March 18, 2008, the Plaintiff began treating the insured, Blair Blackard, for injuries received as the result of an automobile accident. That date the insured signed a “Standard Disclosure and Acknowledgment Form” (D&A Form) which did not list the services which were actually rendered. Thereafter, the Plaintiff continued to treat the insured which resulted in other billings and statements that were submitted to the Defendant for payments. Florida Statute Section 627.736(5)(e)(1)(a) requires that the D&A Form set forth the services “actually rendered.” The failure of Plaintiff to do so caused this D&A Form to be deficient. The Defendant notified the Plaintiff that the billings and statements received from Plaintiff would not be paid, due to the Plaintiff’s failure to submit the properly filled out D&A Form. These billings consisted of the billing for the initial treatment and those which immediately followed the initial visit. The Plaintiff has never resubmitted a corrected D&A Form nor the subsequent statements which are subject to this lawsuit.
DISCUSSION OF LAW
Section 627.736(4)(b), Florida Statutes, provides that, before any benefits be overdue, the insured must be “furnished written notice of the fact of a covered loss and of the amount of same.” Moreover, this subsection also provides those submitting the written notice the ability to be paid a re-submitted claim which is “subsequently supported by written notice”. Subsections 627.736(5)(d)(1) and (e), Florida Statutes require not only that the D&A Form set forth the services actually rendered, but that failure to do so would result in the insurer to “not be considered to have been furnished with notice of the amount of a covered loss or medical bills due” for purposes of subsection 627.736(4)(b). Therefore, the Defendant argues, the deficient D&A Form and the insurers’ explanation of benefits denying payment for the billings, based upon this deficiency, constitute a defense to this action under subsection 627.736(5)(d) and precludes the Plaintiff’s entitlement to The Florida Motor Vehicle NO FAULT Law’s benefits.
This Court has had the occasion to deal with Section 627.736 in other cases. Instructive to the resolution of this case are the opinions which this court has issued in Donald W. Lowery v. Progressive, Duval County, case # 16-2007-SC-006332 (2008) and Neurotech, Inc., v. USAA Casualty Ins. Co. Duval County, Case # 16-2007-SC-8504 (2008). In Lowery , this Court held that when insurers pay claims in spite of a deficient D&A Form, the insurers may not raise that deficiency to recoup payments made nor to refuse the payments of other subsequently submitted statements. In that opinion, this Court noted that billings, subsequent to the initial statement, were not subject to the same requirements of the first billing and the D&A Form, and thus those statements are not in themselves deficient merely because of the D&A Form’s deficiency. However, in Neurotech, this Court was faced with circumstances similar to those found herein. There, the medical provider billed for his initial visit and services rendered and was denied payment due to a deficient D&A form. After being notified the provider continued to treat and bill for services. This Court held that the denial was proper. The billings for subsequent dates of service, when the provider has been duly notified of the deficiency of the D&A Form, were not due because the provider had been duly notified of the deficiency before those services were rendered statements were submitted. Here, the statements at issue were sent by the medical provider before he received notification of the deficiency in the D&A Form. This is not a significant difference from the facts found in Neurotech, supra.
Here, like in Neurotech, once the provider was timely notified that it’s initial statement was deficient, and thus not properly placing the insurer on notice of a covered loss, any other subsequent statements received by the insurer may be refused until the provider properly resubmits the initial statement and D&A Form, as well as the other statements which payments were denied due to the deficient D&A form. While this result may look like it conflicts with the analysis contained in Lowery, supra, it does not.
Simply stated, if the provider has been timely given notice that the initial billing or statement is so deficient as not to put the insurer on notice of a covered loss under Section 627.736(4)(b), it is only reasonable to require the provider to properly resubmit this statement and to correct the deficiencies before any of the statements will be considered due. Once the insurer Defendant sent it’s explanation of reimbursement to the provider wherein the Plaintiff was notified that the D&A Form did not comply with Florida Statutes Section 627.736(5)(e), the Plaintiff must correct the deficiencies before the pending statements may legally put the insurer Defendant on notice of the loss under Section 627.736(4)(b), Florida Statutes. This result comports with the statutory framework and intent of Florida Motor Vehicle NO FAULT Law, Sections 627.730-.7405, Florida Statutes, to promote the prompt resolution of personal injury protection claim. United Auto Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla.2001). By requiring providers to fully comply with the initial statements mandated by the Statute, when timely noticed of the deficiencies, will eliminate future conflicts between providers and insurers and the payment of the providers’ statements.
The Plaintiff’s concern that Defendant will nevertheless refuse to pay for any of the statements, regardless of whether it resubmits a properly filled out D&A Form, is premature because the Defendant will maintain that the D&A Form cannot be resubmitted, and unwarranted. This Court has previously considered the issues of tolling and re-submissions as contemplated and provided by Section 627.736(4)(b), Florida Statutes. See, Lowery, supra, Neurotech, supra, and North Florida Medical Clinic, Inc. v. USAA Casualty Insurance Company, 16 Fla. L. Weekly Supp. 323a (4th Judicial Circuit,(Duval County 2009). In Lowery, supra, this Court explained that the Legislature has allowed insurers to toll the 30-day payment period, if the statement was so deficient as to fail to give “written notice of the fact of a covered loss” under Section 627.736(4)(b). Further, it was noted, Section 627.736(5)(d) provided further protection to insurers by requiring providers to submit properly filled out statements, before the insurer would “be considered to have been furnished with notice of the amount of covered loss or medical bills due”.
In Neurotech, supra, this Court held that the statements in question had failed to give notice of a covered loss to the insurer and thus it was a condition precedent for billing for the other dates of service. However, this Court also found that the action would not be ripe until the D&A Form “is resubmitted in such a way that cures the defect in the original submission”. Further, the Court also held that “[t]o the extent benefits remain, the provider can resubmit a statutorily compliant [D&A Form], and obtain payment, once the insurer has been placed on notice of a covered loss.” Lastly, in North Florida Medical Clinic, supra, this Court held that a provider, under the tolling provision of Section 627.736(4)(b), may resubmit a claim at any time, so long as the benefits have not been exhausted. Therefore, the Plaintiff’s concerns are not only premature but also unwarranted.
For the above reasons, the Defendant’s Motion for Summary Judgment should be granted as the Defendant has not been placed on notice of a loss under Section 627.736(4)(b) and therefore this action is premature. This cause is dismissed without prejudice. The Plaintiff may re-file in the event it resubmits the corrected statements curing the defects in the original submission and the Plaintiff feels that the Defendant has failed to provide the benefits as required by the Florida Motor Vehicle NO FAULT Law, Sections 627.730-.7405, Florida Statutes.
Wherefore, the Defendant’s Motion for Summary Judgment is granted.
