17 Fla. L. Weekly Supp. 821a
Online Reference: FLWSUPP 1709DESA
Insurance — Personal injury protection — Medical expenses — Insurer entitled to summary judgment on provider’s claim for payment where provider did not submit bills within 35 days of date provider was first put on notice that patient might have PIP coverage through policy of his mother, with whom he resided
CHARLIE DESAUSSURE III, Plaintiff, vs. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2009 20141 CONS, Division 78. June 30, 2010. Shirley A. Green, Judge. Counsel: Luis R. Garcia, Port Orange, for Plaintiff. Patrick D. Hinchey, Vernis & Bowling of Central Florida, P.A., Deland, for Defendants.
[Reversed at 18 Fla. L. Weekly Supp. 335a.]
AMENDEDORDER GRANTING DEFENDANT’S SUMMARY
FINAL JUDGMENT
THIS CAUSE came before the Court at hearing on April 29, 2010 on Defendants’ Motion for Final Summary Judgment and, the Court having heard argument of counsel, reviewing the case law and evidence presented and, looking at the case in the light most favorable to the non-moving party, the motion for summary final judgment is GRANTED.
The Plaintiff was involved in an accident on October 5, 2007. At the time of the accident, Plaintiff did not own a vehicle and, therefore, he did not have an automobile insurance policy. However, the Plaintiff lived with his mother who did have an insurance policy with Direct General Insurance Company.
The Plaintiff went to All Family Clinic of Daytona Beach d/b/a Medical Associates on October 9, 2007. He advised the provider that he did not have any Personal Injury Protection coverage.
However, on October 9, 2007, the same day the Plaintiff went to the provider, Cortina Murray, a representative from the provider, contacted Rue and Ziffra, P.A., the attorney for the provider, and was advised by Roxy Cotta that, although the Plaintiff was not personally insured, he lived with his mother and that she may have PIP coverage through her policy. No one from the provider ever followed through on this information until February 2008.
Finally, on February 11, 2008, coverage from Direct General Insurance Company through the mother was confirmed. On February 15, 2008, billing was prepared and submitted to the provider.
The Defendant argues that the Plaintiff violated Fla. Stat. 627.736 (5)(c) (1) and (2) because they failed to submit the bills within 35 days of the services being rendered and failed to comply with the exception in subsection (2) and, therefore, the Defendant is not obligated to pay the bills outside the 35 day submission period. Additionally, the statute prohibits the provider from billing the patient for bills that the insurance company rightfully denies due to noncompliance with the statutory provisions.
The Plaintiff admits that they did not submit the bills within the 35 day period but they argue that they are not bound by subsection (2) because the patient (insured) advised them that he did not have any insurance and, therefore, they could not comply with 627.736(2) (a&b).
The Court agrees that subsection 2 does not apply in this factual scenario. However, the provider, through due diligence could have obtained the PIP information within the 35 day period. Therefore, the provider could have complied with 627.736(1).
LEGAL CONCLUSIONS:
The applicable statute is Fla. Stat. § 627.736 (5) (c) section (1) and (2) which reads:
1. With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services as defined in s.395.002 or inpatient services rendered at a hospital-owned facility, 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 postmark date or electronic transmission date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.
2. If, however, 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. The insurer is not required to pay for such charges unless the provider includes with the statement documentary evidence that was provided by the insured during the 35-day period demonstrating that the provider reasonably relied on erroneous information from the insured and either:
a. A denial letter from the incorrect insurer; or
b. Proof of mailing, which may include an affidavit under penalty of perjury, reflecting timely mailing to the incorrect address or insurer.
The Court agrees that subsection 2 is not applicable when the patient (insured) provides no information or advises the provider that they do not have any PIP insurance. Further, if the information is not provided, the provider cannot be expected to comply with subsection (2) (a) and (b). While the statute intends to expedite the timely filing of claims, it was not meant to preclude the payment of claims where the untimely filing is through no fault of the provider.
However, in the instant case, while the patient (insured) did not think that he had PIP insurance, in an affidavit submitted by the Plaintiff from Tonya Browning-Bedell, Billing Manager, at paragraph 6, she admits that as early as October 9, 2007, just 4 days after the accident, that the provider was advised by their attorney that the patient (insured) lived with his mother and that he may have PIP coverage through her policy. At this point it was the responsibility of the provider, having knowledge of the 35 day deadline, to make the appropriate investigation to determine if there was coverage. Having failed to do so, they can not now come to court and say we billed within 35 days of actual knowledge.
The Court imputes the knowledge to them from the time they were put on notice that the patient may have PIP, which is October 9, 2007. Consequently, the provider should have submitted the bills within 35 days of treatment and, failing to do so, therefore are not entitled to payment.
Additionally, pursuant to Stat. § 627.736 (5) (c) section (1) which reads in part: The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. The provider shall not bill the patient (insured) for the treatment either.
Therefore, it is
ORDERED AND ADJUDGED that Defendant’s motion for summary final judgement is hereby granted. The court reserves jurisdiction for attorneys’ fees and court costs.
