17 Fla. L. Weekly Supp. 132a
Online Reference: FLWSUPP 1702TRAP
Insurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Where insurer failed to provide any evidence in opposition to medical provider’s assertion that it provided two D&A forms which contained all services rendered on initial date of service, there is no genuine issue of fact precluding entry of partial summary judgment on affirmative defense of invalid D&A form — Even if some services rendered were missing from forms, attachment of HCFA forms or medical bills would render D&A forms compliant — Further, any material defect in D&A form would only result in non-payment for initial date of service
RONALD J. TRAPANA, M.D., P.A., a Florida Corporation (assignee of Elbaz, David), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-000831 COCE 54. Claim No. 929381. November 17, 2009. Lisa Trachman, Judge. Counsel: Jonathan J. Warrick, for Plaintiff.
ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO DEFENDANT’S SECOND AFFIRMATIVE DEFENSE
(Re: Invalid Disclosure andAcknowledgment Form)
THIS CAUSE, came before the court for hearing on August 29, 2009, and the Court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a multi-count P.I.P. case. Defendant alleged as an affirmative defense that the Plaintiff did not submit a compliant disclosure and acknowledgment form (“D&A form”) for the initial date of service regarding the following CPT codes 97012, 97010, 97014, 97124, 97530 and 97016. As such, Defendant alleged that said codes were not reimbursable pursuant to F.S. s. 627.736(5)(e). The Plaintiff moved for summary judgment as to this affirmative defense and provided proper record evidence that it provided two (2) D&A forms which listed all services rendered for the first date of service. The Defendant provided no proper record evidence in opposition.
The Plaintiff further responded that it attached the HCFA’s/bills to the D&A forms, that there was no confusion and if there had been any confusion, the Defendant could and should have provided an Explanation of Benefits (“EOB”) complaining of any alleged defect, thereby providing the Plaintiff an opportunity to cure any defect. As such, Plaintiff maintains that the Defendant waived its right to assert invalid D&A form as a defense.
Conclusions of Law: Since the Defendant failed to provide any evidence in opposition to Plaintiff’s assertion that it provided two (2) D&A forms which contained all services rendered on the first date of service, there is no genuine issue of fact as to this issue.
Even if some of the services rendered were missing on the D&A form(s), since the HCFA’s/bills at issue were attached, the form(s) would be in compliance with F.S. s. 627.736(5)(e). Additionally, any material defect in the form would result only in non-payment for the first date of service.
As such, and pursuant to this Court’s prior rulings on this issue, partial summary judgment is granted in favor of the Plaintiff. See e.g. South Fla. Pain & Rehab. v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 588a (Broward County, Judge Lisa Trachman, 2009).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Amended Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense (re: invalid Disclosure and Acknowledgment Form) is GRANTED.
