17 Fla. L. Weekly Supp. 1027b

Online Reference: FLWSUPP 1710BAR2

Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Failure to provide properly completed D&A form is not equivalent to no notice of covered loss — D&A form is not condition precedent to payment of medical bills — Where medical provider is clinic or medical institution, D&A form requirement only applied to initial date of service, irrespective of number of different medical professionals at facility who rendered subsequent treatment

PHYSICIANS GROUP, LLC, A/A/O Jeanette Barreto-Bailey, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2009-CC-337-WS. April 19, 2010. Paul Firmani, Judge. Counsel: Anthony D. Barak, Barak & Zitani, LLC, Sarasota, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., for Defendant.

ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDINGDEFENDANT’S ALLEGATION THAT PLAINTIFF FAILED TO COMPLY WITH FLORIDA STATUTE§627.736(5)(e)(STANDARD DISCLOSURE ANDACKNOWLEDGMENT FORM) and DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE, having come to be heard on February 16, 2010 on Plaintiff’s Amended Motion for Partial Summary Judgment and Defendant’s Motion for Summary Judgment regarding Defendant’s Ninth Affirmative Defense alleging Plaintiff’s non-compliance with Florida Statute §627.736(5)(e), and the Court, having examined the court file, including deposition transcripts, pleadings, filed affidavits, and having heard argument of counsel, and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows:

I. Undisputed Facts and Legal Argument.

This is a breach of contract action regarding personal injury protection (PIP) benefits.

After a review of the court file, deposition, transcripts and filed affidavits the Court finds there is no genuine issue of material fact. A summary judgment is proper only if the moving party is entitled to a judgment as a matter of law. See Estate of Githens v. Bon Secours-Maria Manor Nursing Care Center, Inc., 928 So.2d 1272 (Fla. 2nd DCA 2006).

Defendant has alleged in its Ninth Affirmative Defense that Plaintiff failed to comply with Florida Statute Section §627.736(5)(e) (Standard Disclosure and Acknowledgement form, hereinafter referred to as D&A” form). Defendant argues firstly that the D&A form submitted was not properly completed and secondly that the D&A form is also required for each medical professional employed by Plaintiff’s group medical practice who is licensed under a separate chapter of medicine that treated the patient in this matter after the initial treatment or service.

This Court finds that on the first issue Florida Medical & Injury Center, Inc., etc. v. Progressive Express Insurance Company, [35 Fla. L. Weekly D215b]2010 WL 198459 (Fla. 5th DCA 2010) is controlling caselaw. See also Bayou Chiropractic Center, P.A., d/b/a Art of Chiropractic a/a/o Allen Morgenstern v. USAA Casualty Insurance Company, (Escambia County Court decision, March 11, 2008) (Because the intent of this section of the statute is to prevent fraud, it is only required at the time of the initial treatment.)

The Florida Medical & Injury Center Court noted the following points in its decision:

· There is no language in paragraph 627.736(5)(e) that even suggests that failure to provide the properly completed form to the insurer is failure to provide “notice of the covered loss” to the insurer, or that such failure will render the provider’s bills not payable. If the Legislature had intended this result, it could have said so. We are not at liberty to re-write the statute. Citing Seagrave v. State, 802 So.2d 281, 287 (Fla. 2001);

· Several circuit courts have held that a D&A form is not the “written notice” contemplated by subsection (4)(b), see Theodore P. Vlahos, Inc. v. USAA Cas. Ins. Co., Case No. 07-11984-SC-44 (Fla. 6th Cir. Ct., July 9, 2008) and recently in United Automobile Insurance Company v. Professional Medical Group, Inc., 34 Fla. L. Weekly D2500 (Fla. 3rd DCA, Dec. 2, 2009);

· Neither the statute itself nor controlling case law supports Progressive’s interpretation of the consequence of submitting an incomplete D&A form. If the Legislature intended to require a complete D&A form as a condition precedent to the payment of all medical bills, the statute would have explicitly said so.

This Court agrees with the analysis in Florida Medical & Injury Center, supra, and in United Automobile Insurance Company, supra in that the D&A form is not “written notice of a covered loss,” and that the D&A form is not a condition precedent to payment of medical bills under F.S. 627.736.

Moreover, Defendant has taken the position that if subsequent services are not consistent with the services listed on the initial D&A Form under F.S. 627.736(5)(e)9, then another D&A Form must be submitted to reflect the “inconsistent treatment.” However, in Preziosi West/East Chiropractic Clinic, P.A. a/a/o Vega v. Progressive Express Insurance Company (Case No. 07-52AP, Seminole Circuit Court of Appeals, an unpublished opinion from January 15, 2009, which was consolidated with the 5th DCA case in Florida Medical & Injury Center, supra), the Court stated at p. 11 of the opinion the following:

The Defendant also acknowledges that the form is completed and required only at the first visit. Subsequent treatments and re-evaluations of the medical conditions of the insured does not require any other Forms to be submitted. Neither is the initial form required to be amended regardless of whether the latter treatment drastically changes due to a revised diagnosis. That is, if the insureds original diagnosis stated on the form changes to an altogether different one requiring totally different medical services to be rendered to the insured, the medical provider is not required to submit a new form.

The Defendant’s position under F.S. 627.736(5)(e)9 is that the treatment or service listed on the original D&A form needs to be either consistent with the subsequent services being rendered by the same entity, or if the insureds’ treatment changes, which requires different medical services by different licensed professionals, additional D&A forms are required for subsequent services by the same entity. This position however is not supported by prevailing caselaw.

In Physicians Group, LLC a/a/o Bryan Wroblewski v. United Services Automobile Association, FLWSUPP 1703WROB [17 Fla. L. Weekly Supp. 207a], (Case No. 2008 SC 001673, Sarasota County Court, December 16, 2009) on the exact same issue before this Court, the Court in Wroblewski granted Plaintiff’s Amended Motion for Partial Summary Judgment and held since Plaintiff falls into the category of “clinic” or “medical institution,” the disclosure and acknowledgement form requirement only applies with respect to the initial service or treatment with Plaintiff, not for any subsequent services. This holds true regardless of the number of different medical professionals at Plaintiff’s facility who render care after the initial service/treatment. This Court agrees with the analysis in the Wroblewski case.

III. Conclusion

Based on the foregoing, this Honorable Court grants Plaintiff’s Amended Motion for Partial Summary Judgment as a matter of law and denies Defendant’s Motion for Summary Judgment. This Court finds that the D&A Form under F.S. 627.736(5)(e) is not “written notice of a covered loss,” is not a condition precedent to payment, and that only one D&A Form is required at the initial treatment or service when the services or treatment are being rendered at the same entity. The Court reserve jurisdiction to award reasonable attorney’s fees and costs to Plaintiff.