17 Fla. L. Weekly Supp. 477a
Online Reference: FLWSUPP 1706GALEInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer denied payment of MRI facility’s bill based on legal position that facility’s failure to provide professional license number on bill failed to provide notice of loss, but only court to address issue has found that statutory requirement to place license number on bill does not apply to MRI facilities, insurer did not have reasonable proof that it was not responsible for payment so as to trigger tolling provision of PIP statute, and insurer is not relieved of liability for MRI facility’s bill by exhaustion of benefits in payment of later-received bills of other providers
OAKLAND PARK MRI, INC. (Antonia Gale), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-12690-COCE (50). February 22, 2010. Peter Skolnik, Judge. Counsel: Harley N. Kane, Kane & Kane, P.A., Boca Raton. Miriam Merlo.
REVERSED. 19 Fla. L. Weekly Subpp. 22b
AMENDED FINAL JUDGMENT FOR PLAINTIFF
This action was heard on January 26th, 2010 on the Parties Cross-Motions for Summary Judgment. Upon consideration, it is
ORDERED and ADJUDGED that:
The Plaintiff’s Motion for Final Summary Judgment is Granted and the Defendant’s motion for Final Summary Judgment is Denied. The material facts are not in dispute.
On September 14, 2006, Antonia Gale was involved in a motor vehicle accident in which he sustained injuries. Ms. Gale was covered by a no-fault policy issued by USAA. On or about November 6th, 2006, Plaintiff provided Magnetic resonance imaging (MRI) for the Insured. Such testing was medically necessary to properly diagnose the Insured’s injuries related to the accident occurring on or about September 14th, 2006. On or about November 6th, 2006 Ms. Gale agreed to an assignment of benefits in favor of the Plaintiff which the Plaintiff accepted. Oakland Park timely supplied USAA with a CMS-1500 form billing globally for an MRI. At the time this claim was received there were $10,000 in available benefits. The only asserted defense in this matter at the time of the receipt of Plaintiff’s bill was that Plaintiff failed to include a professional license number in Box 311. The bill in question was received by USAA on November 25th, 2006. On October 20th, 2006, Judge Linda Singer-Stein issued a final judgment in Virtual Imaging Services, Inc. v. USAA Casualty Ins. Co., 14 Fla. L. Weekly Supp. 85a (Fla. 11th Jud. Cir. Cty. October 20th, 2006) against USAA which held:
This action was heard on August 22, 2006 on the parties’ cross motions for summary judgment. The parties agree that there are no disputed questions of fact and this case rests upon a pure question of law. After hearing argument of counsel, being fully advised, and reviewing Defendant’s Motion and Supporting Affidavit, Plaintiff’s Counter-Motion for Summary Judgment, as well as the case law set forth by both parties, the Court makes the following findings:
Plaintiff is a medical provider that submitted a CMS 1500 form to the Defendant/insurer for payment of an MRI Bill for services rendered on November 29, 2004. Plaintiff did not include any professional license number in Box 31 of the CMS 1500 form. Plaintiff sent the CMS 1500 form with a report for the services rendered on its letterhead and signed by a physician, Jeffery Fidel, M.D. (the interpreting radiologist). Part of Plaintiff’s bill included charges for the interpretation of the MRI performed. It is also undisputed that there is no professional license number granted or required of an MRI supplier.
The issue in this case is whether Fla. Stat. Section 627.736(5)(d) (2003) requires an MRI facility to place a professional license number on a bill even though the facility does not itself have such a number nor is required to have such a license. The Court finds that this statute does not apply to an MRI facility, since it cannot comply with providing a license number that it is not required to have.
Accordingly, Plaintiff’s Motion for Summary Judgment is Granted and Defendant’s Motion for Summary Judgment is Denied. Plaintiff shall submit a proposed Final Judgment to Defendant for review before submitting same to the Court.
At the time Judge Singer-Stein’s ruling was the only court to render a decision on the issue raised by the parties in this matter. USAA chose not to appeal Judge Singer-Stein’s ruling. As such, that ruling was final thirty (30) days after its rendition.
This case presented two issues. The first issue which, is identical to the issue decided by Judge Singer-Stein, was previously resolved by this Court, where this Court agreed with Judge Singer-Stein, in a prior partial summary judgment entered July 8th, 2008. The second issue which the Court resolves here is whether USAA is relieved from its liability for the medical bill of Oakland Park because it has exhausted its policy benefits to other medical provider, assignees who first gave notice of their bills after the notice given by Oakland Park.
The narrow issue boils down to “Whether USAA had ‘reasonable proof’ that it was not responsible for the medical bill at issue in this matter, so as to trigger the tolling provision of the no-fault statute?”
The applicable provision of the no-fault law, F.S. § 627.736(4) and (4)(b) (2006), involved here states:
(4) BENEFITS; WHEN DUE. — Benefits due from an insurer under ss. 627.730-627.7405 . . . shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405.
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same . . . any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.
USAA argues that both Simon v. Progressive Express Ins. Co., 904 So.2d 449, 450 (Fla. 4th DCA 2005) and Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) preclude any liability on behalf of USAA in this matter. Both cases are factually distinguishable because in each of those cases there were two facts present in those cases which are different than this case. In each case cited above, the defendant had (1) reasonable proof to establish that the insurer is not responsible for the payment and (2) there was no claim of improper manipulation or failure to adjust the claim in good faith.
In Simon, the Court found that Dr. Simon accepted a reduced payment without protest2 and as such the defendant has “reasonable proof” it was not responsible for the remainder. In Stand Up MRI, the defendant had an IME/Peer Review which found that the medical services in question in that matter were not medically necessary. That IME/Peer Review was “reasonable proof” to establish that the insurer is not responsible for the payment. Here, USAA did not have any “reasonable proof to establish that the insurer is not responsible for the payment.” At most, USAA had a legal argument that because “Box 31” of the CMS-1500 form did not contain a “professional license number” then USAA was not put on notice and therefore F.S. § 627.736 (4) was not triggered. This “legal” position, in the absence of any ruling on same, does not constitute “reasonable proof’ to establish that USAA was not responsible for the payment. Moreover, where said legal position has been rejected by the only Court to decide the issue, and USAA made the business decision not to seek a higher court’s review of the issue, ignoring that decision and continuing to adjust claims in the face of that decision is even more unreasonable. In addition, the plaintiff here “claims” that USAA has improperly manipulated the benefits to exclude payment to Oakland Park.
No-Fault benefits are due and payable as loss accrues. F.S. § 627.736(4), Seminole Cas. Ins. Co. v. Philip D. Schtupak, D.C., P.A., 9 Fla. L. Weekly Supp. 529a (Fla. 17th Jud. Cir. 1998). As such, Oakland Park’s bill was due within thirty (30) days unless USAA had “reasonable proof” that it was not responsible for the medical expenses. This Court does not opine that USAA is precluded from denying the bill and then litigating its liability if it doesn’t have reasonable proof within thirty (30) days. Here, USAA never obtained “any proof” that it was not responsible for payment. It merely rested upon its legal opinion which was rejected by Judge Singer-Stein (and this Court) and arguing that its later payment to subsequent assignees extinguishes its liability.
Simon and Stand Up MRI do not abrogate the law of priority of assignees. As between competing assignees claiming an interest in a single fund, the first to notify the debtor has priority over the other. Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965). In Boulevard, the Supreme Court adopted the “English Rule” of priority between successive assignees of an account receivable. Id. at 99. Furthermore, in State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), the Court recognized that the English Rule adopted in the Boulevard case would be applicable to a suit for PIP benefits. Simon and Stand Up MRI merely point out that there is a tolling provision in F.S. § 627.736(4)(b) which comes into effect where the insurer has reasonable proof that it is not responsible for the medical expenses and there is no claim of improper manipulation or bad faith on behalf of the insurer.
The Court grants final judgment in favor of the plaintiff in the principal amount of $2,103.36 plus prejudgment interest from November 20th, 2006 at the statutory rate in effect at that time of 9% which is $603.17 for a total judgment amount of $2,706.53, for which let execution issue. The Court reserves jurisdiction to assess attorney fees and costs pursuant to F.S. § 627.736 and F.S. § 627.428.
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1USAA did raise “exhaustion” as an affirmative defense in its initial answer and affirmative defenses in this matter.
2Dr. Simon did not complain about the reduced payment until after other valid payments exhausted policy benefits.
