16 Fla. L. Weekly Supp. 37a
Insurance — Personal injury protection — Coverage — Priority — Hospital lien — Because hospital that failed to timely file lien was unsecured creditor until lien was filed, medical provider that submitted bill to insurer before hospital filed lien established priority claim to payment — Notice of loss — Claim form — Where provider put universal provider identification number rather than professional license number in box 31 of claim form, provider failed to give notice of claim to insurer — Insurer did not waive box 31 affirmative defense by failing to provide explanation of benefits detailing reason payment was denied
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HOWARD J. GELB, M.D., P.A., a/a/o NOREEN SCHACHT, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-13875 (02). L.T. Case No. 05-19706. September 24, 2008. Counsel: Michael J. Neimand, Coral Gables. Kevin B. Weiss, Maitland. Andrew J. Weinstein, Coral Gables.
[Editor’s note: Lower court order published at 14 Fla. L. Weekly Supp. 103b]
OPINION
(JOHN B. BOWMAN, J.) THIS CAUSE is before the Court upon appeal from a county court order granting final summary judgment in favor of Appellee, Howard J. Gelb, M.D., P.A. (“Gelb”). The Court being duly advised in premises finds:
On November 16, 2005, Gelb filed a suit for breach of contract against United Automobile Insurance Company (“United”) for PIP benefits. United filed an answer and three affirmative defenses alleging, inter alia, exhaustion of benefits and Gelb’s failure to provide his physician license number in box 31 of the HCFA form.
The standard of review for a lower court’s order granting summary judgment is de novo. See Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000); Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So.2d 126 (Fla. 2000).
The first issue on appeal is whether the trial court erred in finding Gelb’s medical bills had priority over the hospital lien. Insured was involved in an automobile accident on December 18, 2003, and was admitted to Coral Springs Medical Center. Upon discharge, the Insured began treating with Gelb. Thereafter, Gelb submitted his medical bills to United. The Insured was later readmitted into Coral Springs Medical Center and the hospital filed its lien on June 22, 2004. On August 2, 2006, Gelb filed a summary judgment motion arguing that his bills had priority because he filed them before the hospital filed its lien. The trial court granted his summary judgment motion.
The law is well settled that a hospital lien attaches the moment an injured person is admitted as a patient. Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital v. Teresa Carroll, et al., 509 So.2d 1232, 1234 (Fla. 4th DCA1987). Thus, a tardy filing does not invalidate the hospital lien, but only results in the lienor or creditor being an unsecured creditor, at least until such time as the lien is filed. Id.
In the present case, the hospital failed to timely file its lien, therefore, it was an unsecured creditor until the lien was filed. This Court finds that Gelb established a priority claim to payment by submitting its bill to United ahead of the hospital.
The second issue on appeal is whether the trial court erred in finding United waived its box 31 affirmative defense by failing to file an explanation of benefits. [Editor’s note: Lower court order published at 14 Fla. L. Weekly Supp. 103b.] When Gelb submitted his medical bills to United, he put his Universal Provider Identification Number (“UPIN”) instead of physician license number in box 31 of the HCFA form as required by Fla. Stat. § 627.736(5)(d). The HCFA form instructions require the physician or supplier to provide their professional license number in Box 31 of the HCFA form. On August 2, 2006, Gelb filed a motion for summary judgment arguing that he was in substantial compliance with the statute because he provided his UPIN on the HCFA form. He further argued that United waived his right to rely on this defense because it did not provide Gelb with an explanation of benefits. The trial court granted Gelb’s summary judgment motion.
The 2003 amendment to § 627.736(5)(d), Florida Statutes, provides:
All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.”
For purposes of paragraph 4(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.
The 2003 amendment specifically requires that the medical provider must include their license number. The omission of the physician’s license number constitutes as a failure to provide notice of the claim to the Insurer. When the legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of the law. Caruso v. Caruso, 814 So.2d 498 (Fla. 4th DCA 2002). This Court finds that Gelb’s incomplete HCFA form is legally insufficient to place United on notice of the claim.
Gelb further argues that even if the Court finds that he did not substantially comply with the requirements of Fla. Stat. 627.736(5)(d), United waived its right to raise this defense because it failed to provide an explanation of benefits detailing the reason that the payment was denied.
The Third District Court of Appeal had a similar issue before it. See United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 2008 WL 2811804 (Fla. 3rd DCA 2008) [33 Fla. L. Weekly D1846b]. In Garrido, an automobile negligence case, the court held that the Insurer did not waive its right to assert that the medical bills were untimely even though it did not provide “late billing” as a reason for denying payment in the explanation of benefits form.
Similarly in present case, United did not waive its box 31 affirmative defense by failing to provide an explanation of benefits. Accordingly, there are genuine issues of material fact that preclude the entry of a summary judgment.
ORDERED AND ADJUDGED that the lower court is reversed and this action is remanded for action consistent herewith.
