16 Fla. L. Weekly Supp. 857a
Online Reference: FLWSUPP 169ELLER
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Medical provider’s submission of D&A form that did not contain description of medical services rendered did not permanently forfeit provider’s right to be paid for medical services — Provider’s resubmission of properly completed D&A form constitutes substantial compliance with statutory D&A form requirement — No merit to argument that insurer is only required to pay for services rendered within 35 days of receipt of resubmitted D&A form where at time resubmission was received insured had completed all treatment and all statements of charges had been submitted to insurer on timely basis
STEVEN L. RHODES, D.C., P.A., as assignee of LINDSEY ELLERBE, Plaintiff, vs. GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. Small Claims Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2008-SC-008239, Division O. May 27, 2009. Ronald P. Higbee, Judge. Counsel: D. Scott Craig, Law Office of D. Scott Craig, P.A., Jacksonville. James B. Eubanks.
ORDER DENYING DEFENDANT’S AND GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on both Plaintiff’s and Defendant’s Motions for Summary Judgment. Having heard arguments of counsel and having considered relevant Florida Law, it is ORDERED AND ADJUDGED as follows:
This case concerns Defendant’s denial of No-Fault Benefits, for medical services rendered by Plaintiff to its patient. Defendant denied Plaintiff’s billing, because of Defendant’s position that the Standard Disclosure & Acknowledgment Form (D&A Form) did not comply with Florida Statutes 627.736(5)(e)1-9.
Plaintiff acknowledges that the D&A Form, when signed by the patient on the initial date of service on June 28, 2007, did not include a description of the medical services provided on that date, as required by F.S. 627.736(5)(e)(1)(a). This D&A Form was submitted to Defendant on a timely basis, along with Plaintiff’s billing for medical services. Defendant denied payment to Plaintiff, stating that the D&A Form did not comply with the statute, as required. Plaintiff continued to treat its patient, and continued to timely submit its billing to Defendant. Defendant refused to pay any of Plaintiff’s billing for medical services, based on the deficient D&A Form.
Prior to filing suit, Plaintiff made several inquiries of Defendant, asking what steps Plaintiff could take, in order to cure the deficiency in the D&A Form. Defendant declined to explain to Plaintiff any steps that could be taken, simply responding to Plaintiff’s inquiries by stating that the “Standard Disclosure & Acknowledgment Form failed to comply with all or part of F.S. 627.736(5)(e)1-9”.
Plaintiff made additional efforts to comply with the statute, first by attempting to resubmit a completed D&A Form via facsimile. However, this Court recognizes F.S. 627.736(5)(e)(5), prohibits furnishing this Form electronically. Therefore, such resubmissions are non-compliant with the PIP statute.
On February 18, 2008, Plaintiff’s patient signed the D&A Form, which contained a full description of the medical services provided to her on June 28, 2007. This original corrected D&A Form was resubmitted to Defendant via U.S. Mail, and was received by Defendant on March 5, 2008. Defendant did respond to Plaintiff, this time stating in its letter of March 12, 2008:
“We are in receipt of the corrected FL Disclosure and Acknowledgment form; however, you cannot correct and resubmit this form. Once the original disclosure and acknowledgment form has been received and it not correct then neither USAA nor the patient owes these medical bills.”
The question for this Court to resolve is whether by its initial submission of a D&A Form that did not contain the description of medical services rendered, Plaintiff has for all time forfeited its right to be paid for these medical services. Defendant urges this Court to rule that once a medical provider submits a non-compliant D&A Form, that it cannot be cured, and that neither the insurer nor the patient will owe any of the charges for all dates of treatment rendered by that provider.
This Court finds this interpretation harsh, and not compelled by a fair reading of the statute. Nowhere in the Florida Motor Vehicle No-Fault Law has the legislature stated that if the D&A Form is incorrect when initially completed and submitted, the medical provider’s right to be paid for medical services rendered has been forfeited for all time. The Defendant argues that since the D&A Form is required to be completed and signed on the initial date of service, the medical provider cannot go back in time and fix any errors in that Form. This Court is not persuaded by Defendant’s argument.
Plaintiff argues that it has substantially complied with the statute by having its patient re-sign the D&A Form, and by having resubmitted an original corrected D&A Form to Defendant prior to filing suit. Defendant’s brief filed with its Motion for Summary Judgment cites Ft. Lauderdale Pain Center, Inc. v. Allstate Insurance Company, 13 Fla. L. Weekly Supp. 1006a (Fla. 11th Judicial Cir., Miami-Dade Ct., July 17, 2006), to support its argument that Plaintiff’s claim is forever barred. However, though the provider in that case did not attempt to correct and resubmit the original D&A Form prior to filing suit, that opinion acknowledges and recognizes the application of a substantial compliance standard under certain circumstances. Defendant argues in the present case that Plaintiff has not substantially complied, cannot now do so, and the substantial compliance standard does not apply because the D&A Form was incomplete when it was originally signed and submitted. This Court is not persuaded, and finds that Plaintiff has substantially complied with the statute in this case.
Contrary to Defendant’s position prior to suit being filed, counsel for Defendant argued at the hearing that if this Court finds that Plaintiff’s February 18, 2008 resubmission of the D&A Form substantially complied with the statutory requirements, that Defendant was placed on notice as of the date such proper resubmission was received. Defendant received the resubmission on March 5, 2008 and therefore, Defendant urges the Court to rule that payments should be made only for all services performed 35 days prior to the receipt of the proper resubmission. Florida Statute 627.736(5)(c)(1) states, in pertinent part, “. . .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 postmarked date of the statement, except for the past due amounts previously billed on a timely basis under this paragraph. . .” At the time the proper resubmission was received, the insured had concluded receiving treatment. As all statements of charges for the medical services rendered were submitted to Defendant on a timely basis, as acknowledged by the parties, this Court is not persuaded by Defendant’s argument.
The policy of the courts of Florida when construing provisions of the Florida No-Fault Act has always been to construe the act liberally in favor of the insured; Palma v. State Farm Mutual Automobile Insurance Company, 489 So.2d 147, 149 (Fla. 4th DCA 1986).
For the foregoing reasons, Defendant’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Summary Judgment is GRANTED. Plaintiff is entitled to reasonable attorneys’ fees and costs pursuant to §§ 627.736 and 627.428, Florida Statutes, as the prevailing party. This Court reserves jurisdiction to enforce this Final Judgment, and to do any and all other acts necessary in this cause.
