16 Fla. L. Weekly Supp. 683a
Online Reference: FLWSUPP 167OSHEA
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form requirement applies only to first date of service and failure to submit form is not fatal to entire claim
RAINFOREST REHABILITATION, INC., a Florida Corporation (assignee of O’Shea, Maricay), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-16272 COCE 50. May 8, 2009. Peter B. Skolnik, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russell Kolodziej, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on hearing on May 8, 2009 on Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s affirmative defense alleging that the Plaintiff failed to submit a proper disclosure and acknowledgment form and that this failure is fatal to the Plaintiff’s claim. The Court, having reviewed the motion, the Court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background:This is a P.I.P. case. Defendant avers that the Plaintiff failed to submit a proper disclosure and acknowledgment form and, accordingly, that Defendant has not been furnished with written notice of a covered loss. Plaintiff responds that, at most, the disclosure and acknowledgment requirement would only apply to the first date of service based upon the terms of Florida Statute s. 627.736(5)(e)(9).
Legal Conclusions: The court finds that pursuant to Florida Statute s. 627.736(5)(e)(9) the disclosure and acknowledgment requirement applies only to the first date of service and is not fatal to the entire claim. Specifically, F.S. s. 627.736(5)(e)(9) states:
The requirements of this paragraph apply only with respect to the initial treatment or service of the insured by a provider. For subsequent treatments or service, the provider must maintain a patient log signed by the patient, in chronological order by date of service, that is consistent with the services being rendered to the patient as claimed. (emphasis added).
For dates of service after the initial treatment or service, the statute sets forth separate and distinct requirements — namely, a chronological patient log. Defendant has not pled non-compliance with this provision.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is Granted without prejudice.
