17 Fla. L. Weekly Supp. 878a
Online Reference: FLWSUPP 1710GLASInsurance — Personal injury protection — Coverage — Medical expenses — Claim form — Provider failed to comply with requirements imposed by statute, and accordingly failed to furnish insurer with notice of covered loss, where it omitted professional license number from claim form — Deficiency may be asserted at any time, even after payment — Insurer did not waive defense of lack of notice by partially paying bill and by giving sworn testimony that there were no problems with HCFA form — Attorney’s fees — Proposal for settlement — Insurer entitled to award of appellate attorney’s fees pursuant to section 768.79 and rule 1.442, conditioned upon trial court determining that proposal for settlement was properly made and submitted and that insurer is otherwise entitled to these fees
QUASHED. 36 Fla. L. Weekly D109b.
FLORIDA CENTER FOR ORTHOPAEDICS, As assignee of Robert Glass, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 07-77. L.C. Case No. 2005-CC-13776. March 2, 2010. Appeal from the County Court, for Orange County, Antoinette Plogstedt, Judge. Counsel: Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, Tampa, for Appellant. Betsy E. Gallagher, and Amy L. Miles, for Appellee.
(Before McDONALD, WHITEHEAD, MUNYON, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant Florida Center for Orthopaedics (FCO), as assignee of Robert Glass (Glass), timely appeals the lower court’s Final Summary Judgment, rendered on or about September 27, 2007, in favor of Appellee Progressive Express Insurance Company (Progressive). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
On or about February 10, 2005, Glass was involved in an accident and sustained bodily injuries. Prior to the accident, Progressive issued an insurance contract to Patrick Routledge, as named insured, and Glass, as an additional insured, which provided for PIP coverage and/or medical expense coverage. This policy was in effect on the date of the accident. As a direct and approximate result of the injuries, Glass incurred reasonable expenses for necessary medical treatment. Pursuant to an agreement, Glass assigned his rights against Progressive to FCO and FCO furnished Progressive with notice of covered losses and made demand for benefits for reasonable, necessary, and related medical, rehabilitative, and remedial treatment.
On or about July 13, 2005, Progressive sent an explanation of benefits to FCO stating it would reimburse a maximum allowable amount of 200% under the Medicare Part B Participating Physician Fee Schedule for the area in which the services were rendered, or $259.22 of the $310.00 charged.
FCO sent Progressive a notice of intent to initiate litigation on August 2, 2005, stating that it had not been paid in full for services rendered on June 22, 2005, in the amount of $200. FCO subsequently filed an action for damages against Progressive on September 12, 2005, for failure to timely provide benefits as required by section 627.736(4), Florida Statutes.
Progressive filed an answer denying the allegations and asserting the following affirmative defenses: (1) FCO failed to comply with all statutory and policy requirements by billing improper CPT codes and by failing to produce supporting documentation; (2) the medical services provided by FCO were medically unnecessary, unrelated to the accident, and/or the charges were unreasonable; (3) some or all of the charges exceed a reasonable amount within the provider’s geographic region; (4) FCO failed to serve a presuit demand letter prior to filing the lawsuit; (5) FCO acquiesced or waived its right to proceed against Progressive by accepting reduced payments; (6) FCO lacks standing; and (7) PIP benefits under the policy have been exhausted. On November 16, 2005, FCO entered a reply denying Progressive’s affirmative defenses.
On June 20, 2006, Progressive filed a motion for summary judgment and motion for protective order stating that it provided personal injury protection benefits to FCO for treatment rendered to Glass and the PIP benefits under the policy were exhausted prior to the filing of the lawsuit. Thereafter, on October 3, 2006, Progressive filed another motion for summary judgment stating that it was not placed on noticed of the covered loss and should not be responsible for payment because the HCFA forms submitted by FCO did not contain the credentials nor the medical license number of the treating medical provider. Progressive also sought to amend its affirmative defenses to include the defense that FCO failed to submit a properly completed HCFA form.
On September 27, 2007, the trial court entered final summary judgment in favor of Progressive finding that it was undisputed that FCO failed to include the professional license number on the CMS 1500 form and an insurer may raise such a defense at any time pursuant to section 627.736(4)(b), Florida Statutes. The trial court concluded that FCO’s failure to complete the form in compliance with section 627.736(5)(d), Florida Statutes, precluded it from bringing its claim against Progressive. This appeal followed.
The standard of review for an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla. 2000). In reviewing a summary judgment, the appellate court must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party and if the slightest doubt exists, the summary judgment must be reversed. Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001); Racetrac v. Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376, 377 (Fla. 5th DCA 1998)(judicial interpretation of state statutes is a purely legal matter and therefore subject to de novo review).
This appeal concerns a provider’s duty to include a license number on a claim form and an insurer’s notice and payment of a covered loss.
On appeal, FCO asserts that while the claim form it submitted to Progressive did not include the professional license number, the form substantially complied with section 627.726(5)(d), Florida Statutes. Alternatively, FCO argues that Progressive waived the defense of lack of notice by partially paying the bill and by giving sworn testimony that there were no problems with the HCFA form.
On the other hand, Progressive contends that the trial court’s entry of summary judgment was proper because section 627.736(5)(d), Florida Statutes, requires the professional license number to be included on the HCFA form and pursuant to the clear statutory language and case law, the requirement to include a professional license on the claim form cannot be waived.
Section 627.736(5)(d), Florida Statutes (2005), states:
All statement and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph . . . 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 medicals 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.
Section 627.736(4)(b), Florida Statutes (2005), provides in pertinent part:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
Section 627.736(5)(d), Florida Statutes, was amended in 2003 to require that the provider include its professional license number on the HCFA forms. Legislative intent is the polestar that guides a court’s inquiry under the no fault law. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2002). The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146, 1150 (Fla. 2000). The Florida Legislature’s use of the word “shall” in the amendment requiring the inclusion of the professional license number on the HCFA forms conveys that it is a mandatory requirement which cannot be waived.
It is undisputed that Glass sought treatment for his injuries from FCO and he made an assignment of benefits under the policy to FCO. It is further undisputed that FCO billed Progressive for the treatment but failed to include the professional license number of the provider on the CMS 1500 form. Therefore, this Court finds that FCO failed to comply with the requirements imposed by section 627.736(5)(d), Florida Statues, and, in turn, failed to furnish Progressive with notice of a covered loss for purposes of section 627.736(4)(b), Florida Statutes. See Tarpon Total Health Care v. Geico Gen. Ins. Co., 16 Fla. L. Weekly Supp. 1061c (Fla. 6th Cir. Ct. July 17, 2009); David E. Yachter, D.C., P.A. v. State Farm Mut. Auto. Ins. Co., 16 Fla. L. Weekly Supp. 464b (Fla. 17th Cir. Ct. Feb. 20, 2009); Wide Open MRI, Inc. v. United Auto. Ins. Co., 15 Fla. L. Weekly Supp. 940b (Fla. 17th Cir. Ct. Aug. 6, 2007); Advanced Spine & Injury Center, P.A. v. Progressive Select Ins. Co., 14 Fla. L. Weekly Supp. 893b (Fla. 6th Cir. Ct. June 22, 2007); Magic Chiropractic Clinic, Inc. v. Progressive American Ins. Co., 14 Fla. L. Weekly Supp. 796a (Fla. 9th Cir. Ct. June 18, 2007); New Life Polyclinics, Inc. v. U.S. Security Ins. Co., 14 Fla. L. Weekly Supp. 480c (Fla. 11th Cir. Ct. Feb. 16, 2007); Dept. of Radiology Examinations, Inc. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 1092a (Fla. 11th Cir. Ct. Aug. 14, 2006); Hope Health & Wellness v. Geico Gen. Ins. Co., 14 Fla. L. Weekly Supp. 292a (Fla. 15th Cir. Ct. July 28, 2006); Finlay Diagnostic Center, Inc. v. Progressive American Ins. Co., 13 Fla. L. Weekly Supp. 610b (Fla. 11th Cir. Ct. Jan. 31, 2006).
This Court further finds that given the specific language in section 627.736(4)(b), Florida Statutes, that such deficiency may be asserted at any time, even after payment, this Court cannot conclude that Progressive waived such deficiency.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s “Summary Final Judgment,” entered on September 27, 2007, is AFFIRMED; Appellant’s Motion for Appellate Attorney’s Fees is DENIED; and Appellee’s Motion for Appellate Attorney’s Fees is DENIED.
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ORDER GRANTING APPELLEE’S MOTION FOR REHEARING
THIS MATTER came before the Court for consideration of Appellee’s “Motion for Rehearing on Appellee, Progressive’s, Motion for Appellate Attorney’s Fees,” filed March 17, 2010, and Appellant’s “Response to Appellee’s Motion for Rehearing,” filed March 25, 2010. This Court having reviewed the motions, the court file, and being otherwise fully advised in the premises, hereby grants the motion for rehearing as follows:
This Court has determined that Appellee is entitled to appellate attorney’s fees pursuant to section 768.79, Florida Statutes, and rule 1.442, Florida Rules of Civil Procedure, conditioned upon the trial court determining that the proposal for settlement was properly made and submitted and that Appellee is otherwise entitled to fees pursuant to section 768.79, Florida Statutes, and rule 1.442, Florida Rules of Civil Procedure.
Accordingly, it is hereby ORDERED AND ADJUDGED that Appellee’s Motion for Rehearing is GRANTED and this cause is REMANDED to the trial court for proceedings consistent with this opinion.
