18 Fla. L. Weekly Supp. 410b
Online Reference: FLWSUPP 1804INST Insurance — Personal injury protection — Claims — Timeliness — Insurer is not obligated to pay bills postmarked more than 35 days after date services were rendered — Insurer did not waive right to contest timeliness of bills by making previous partial payment
INSTITUTE FOR NON-SURGICAL ORTHOPEDICS CENTER FOR OSTEOPATHIC TREATMENT (a/a/o NICOLAS MONTGOMERY), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-05242 COCE 53. February 15, 2011. Robert W. Lee, Judge. Counsel: Michael Fischetti, Plantation, for Plaintiff. Matthew C. Barber, Matt Helman, P.A., Plantation, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT STATE FARM ASTO FLA. STAT. 627.736(5)(C)(1)
THIS CAUSE, having come to before this Court on January 4, 2011 on Defendant State Farm’s Motion For Summary Judgment as to Fla. Stat. 627.736(5)(c)(1), and the Court having heard argument, reviewed the Court file, reviewed relevant legal authorities and been otherwise advised in the premises, the Court finds as follow:
INTRODUCTION
1. Plaintiff filed this action seeking PIP benefits for date of service December 3, 2009.
2. State Farm subsequently answered the Complaint, raising its third affirmative defense that “[o]ne or both bills for date of service December 03, 2009 were not timely submitted by Plaintiff and are therefore not compensable pursuant to Fla. Stat. 627.736(5)(c)(1).”
3. On October 26, 2010, Defendant State Farm served its Motion for Summary Judgment as to Fla. Stat. 627.736(5)(c)(1) and argues that the charges for December 3, 2009, which were submitted by way of two HCFAs mailed on January 15, 2010 and/or dated January 13, 2010, are not required to be paid by State Farm on the grounds that “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[.]”
CONCLUSIONS OF LAW AND FACT
4. Upon demonstrating the absence of any genuine issue of material fact, summary judgment should be granted in favor of the moving party. Moore v. Morris, 475 So.2d 666 (Fla. 1985). In determining the existence of genuine issues of material fact, the court should view the record in a light most favorable to the non-moving party. Robinson v. City of Miami, 177 So.2d 718 (Fla. 3d DCA 1965).
5. Under Fla. Stat. 627.736(5)(c)(1), an insurer is not obligated to pay PIP bills for services rendered more than 35 days before the postmark date of the statement of charges.
6. In this case, the undisputed evidence shows that the bills for date of service December 3, 2009 were dated in Box 31 on January 13, 2010 and that the bills were submitted in an envelope with a postmark date of January 15, 2010. Plaintiff did not contravene Defendant’s prima facie evidence.
7. This Court finds no merit to Plaintiff’s argument that Defendant waived the right to contest the untimeliness of the bills for date of service December 3, 2009 based upon State Farm’s previous, partial payment of the bills. In this case, Plaintiff has not pled as an avoidance to Defendant’s affirmative defense the doctrine of waiver in a reply. In fact, Plaintiff has not filed a reply at all. Moreover, waiver is not a valid avoidance to an affirmative defense of late billing under Fla. Stat. 627.736(5)(c)(1). See United Automobile Insurance Company v. Eduardo J. Garrdio, D.C., P.A., 990 So.2d 574 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1846b] (finding that an insurer does not waive “late billing” as reason for denying payment by failing to nominate it on an explanation of benefits form, amongst other reasons); and, Coral Imaging Services a/a/o Virgilio Reyes v. GEICO, 955 So.2d 11 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a] (finding that [1] an insurer is prohibited from paying untimely charges, or [2] an insurer’s payment of untimely charges is gratuitous).
8. Accordingly, is it hereby ADJUDGED that Summary Judgment in favor of the Defendant is GRANTED.
9. IT IS FURTHER ADJUDGED that Plaintiff shall take nothing in this action.
10. This Court hereby reserves jurisdiction to consider the issue of attorney’s fees and costs.
