19 Fla. L. Weekly Supp. 139a
Online Reference: FLWSUPP 1902LEMIInsurance — Personal injury protection — Disclosure and acknowledgment form — Signature of medical professional who rendered treatment is not element of notice of covered loss, and lack of signature on D&A form may be cured — Insurer who failed to notify medical provider of defect in D&A form is deemed to have waived objection to form — Evidence — Judicial notice — Request for judicial notice of exhibits filed with provider’s request for admissions already in court file is granted — Request for judicial notice of documents not previously filed with court but filed with Florida Office of Insurance Regulation is denied
NU-BEST WHIPLASH INJURY CENTER, INC. a/a/o SALLY LEMIEUX, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 10-004904-CO-41. August 31, 2011. Myra Scott McNary, Judge. Counsel: Lawrence H. Liebling, Liebling & Liebling, Safety Harbor, for Plaintiff. Sandra L. Heller, Goldstein Law Group, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND ORDER GRANTINGIN PART AND DENYING IN PART PLAINTIFF’SREQUEST FOR COMPULSORY JUDICIAL NOTICE
This matter came before the Court on Monday, August 15, 2011 on Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s (“State Farm”) Motion for Summary Judgment and Plaintiff NU-BEST WHIPLASH INJURY CENTER, INC. a/a/o SALLY LEMIEUX’s (“Nu-Best”) Request for Compulsory Judicial Notice. The court, having reviewed the file, heard argument, and reviewed the parties’ submissions, hereby finds as follows:Procedural History
On May 25, 2010, Nu-Best filed a Complaint alleging that State Farm improperly refused to pay for their patient, Sally Lemieux’s, treatment for injury resulting from an automobile collision on June 6, 2008. On June 11, 2010, Nu-Best filed an Amended Complaint, declaring substantially the same allegations as the original complaint. After the collision, Ms. Lemieux allegedly assigned her rights and benefits, including PIP benefits, under the policy to Nu-Best. On July 1, 2008, Nu-Best contends that State Farm received a $900.00 bill from Nu-Best for Ms. Lemieux’s medical services. It is alleged that State Farm later re-coded Plaintiff’s service in response to receiving Plaintiff’s Notice of Intent to Initiate Litigation on April 1, 2010. Based on this re-coding, Nu-Best states that State Farm paid $143.42, but did not pay interest or penalties on the outstanding bill.
State Farm filed an answer and affirmative defenses to Nu-Best’s Complaint and Amended Complaint on June 28, 2010, and July 15, 2010, respectively. These defenses include, in part, a claim that Nu-Best failed to complete a proper Disclosure and Acknowledgment (“D & A”) form as required by Florida Statute §627.736 (5)(e) due to the medical provider’s failure to sign the form at the time the services were rendered.
On November 10, 2010, State Farm filed a Motion for Summary Judgment based on the deficient D & A form. In response, Nu-Best filed Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment on December 3, 2010.
Nu-Best then filed Plaintiff’s Request for Compulsory Judicial Notice on April 1, 2011. On May 16, 2011, State Farm filed Defendant’s Motion in Opposition to Plaintiff’s Request for Compulsory Judicial Notice and Request for Hearing Pursuant to Florida Statutes §90.204.Standard of Review – Summary Judgment
Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, viewing every possible inference in favor of the non-moving party. Poe v. IMC Phosphates MP, Inc., 885 So. 2d 397, 400-01 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2304a]; Maynard v. Household Finance Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D2828b]; Hodges v. Citrus World, Inc. 850 So. 2d 648, 649 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1733a]. In ruling on a motion for summary judgment, the court may consider the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any. Rule 1.510, Florida Rules of Civil Procedure. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Hervey v. Alfonso, 650 So. 2d 644, 645-46 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D326a]. “In short, unless the facts are so crystallized that only questions of law remain, summary judgment is inappropriate.” Rodriguez v. Saenz, 866 So. 2d 184, 186 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D456b].Analysis
Defendant’s Motion for Summary Judgment
In its Motion for Summary Judgment, State Farm alleges that it is entitled to final summary judgment and fees and costs because Nu-Best failed to comply with §627.736(5)(e)4 by failing to obtain the signature of the medical professional who rendered Ms. Lemieux’s medical services on the D & A form prior to litigation. Defendant claims that Nu-Best cannot cure such a defect.
Nu-Best does not dispute that the original D & A form lacked the signature of the medical professional who rendered treatment to Ms. Lemieux. Though there is no genuine issue of material fact in this matter, the court finds that, viewing every possible inference in favor of the non-moving party, State Farm is not entitled to summary judgment because it has not established irrefutably that Nu-Best cannot prevail.
Defendant cites §627.736(5)(e)4, Florida Statutes (2010), stating that “[t]he licensed medical professional rendering treatment for which payment is being claimed must sign, by his or her own hand, the form complying with this paragraph”, and relies on case law for the proposition that Nu-Best’s claim should be barred because Nu-Best did not cure the defect of the missing signature on the D & A form prior to filing suit.
State Farm cites a 15th Judicial Circuit county court case in which the court granted summary judgment to an insurance company because the medical provider signed the D & A form the day after the patient signed the form. St. Lucie Injury Center, Inc. v. USAA Casualty Ins. Co., 16 Fla. L. Weekly Supp. 773a (Fla. Palm Beach Cty. Ct. 2009). The court stated that §627.736(5)(e) “requires the health care provider to indeed execute the form at the time of the initial treatment.” Id.
The 15th Judicial Circuit Court, acting in its appellate capacity, recently reversed that opinion. St. Lucie Injury Center, Inc. v. USAA Casualty Ins. Co., 18 Fla. L. Weekly Supp. 506a (Fla. 15th Cir. Ct. Palm Beach Cty. 2011). Based on the 5th DCA’s opinion in Florida Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., the 15th Judicial Circuit court reversed the county court’s previous decision, stating that “initial completion of a D & A form is not a condition precedent to payment and that an insured’s submission of a flawed D & A form does not preclude an insured’s later filing of a claim for PIP benefits.” Id. (citing Florida Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]). Consequently, State Farm’s reliance on St. Lucie for the proposition that the D & A form must be submitted flawlessly is misplaced.
Though State Farm also quotes Florida Med. & Injury Ctr. to support the notion that the D & A form must be cured before filing suit, this court disagrees. Florida Med. & Injury Ctr., Inc., 29 So. 3d at 341-42. In Fla. Med. & Injury Ctr., the court held that proper completion of a D & A form is not a prerequisite to receive payment under an insurance policy. Id. at 339, 341. The court asserted that “nothing in [§627.736(5)(e), Florida Statutes] suggests that the submission of a flawless D & A form is a condition to the right to enforce a claim to payment.” Id. at 341. The court also clarified that “[a] defect in a submitted claim has to be brought to the provider’s attention by the insurer so it can he rectified” and “[i]f the insurer fails to specify the defect in the form so that it can be rectified as contemplated by subsection (4), it will be deemed to have waived its objection to payment.” Id. at 339, 341.
If State Farm was concerned about the lacking signature on the D & A form, it should have notified Nu-Best and given it an opportunity to cure. State Farm, however, did not afford Nu-Best the opportunity to cure the D & A form prior to litigation. Dr. John Postethwaite, the medical professional who treated Ms. Lemieux, stated in his affidavit that at no time prior to the filing of this case did State Farm communicate with him concerning the absence of his signature on the D & A form, nor did State Farm request that he sign and resubmit the form. The first time State Farm mentioned the lack of signature on the D & A form, he claimed, was after the case had been filed. Dr. Postethwaite asserted that he nevertheless fulfilled every attestation on the D & A form and that if State Farm had made him aware of the missing signature prior to litigation, he would have signed and resubmitted the form.
Based on the foregoing information, this court cannot grant Defendant’s Motion for Summary Judgment. This court agrees with Plaintiff’s interpretation of the case law that a flawed D & A form may be properly cured and is not an element of “notice of covered loss”, and relies on Dr. Postethwaite’s affidavit that had State Farm notified him prior to litigation that his signature was missing from the D & A form, he would have signed and resubmitted the form.
Plaintiff’s Request for Compulsory Judicial Notice
On April 1, 2011, Nu-Best filed its Plaintiff’s Request for Compulsory Judicial Notice, requesting that the court take compulsory judicial notice of three Exhibits attached to Nu-Best’s Second Request for Admissions, filed with the court on February 22, 2011, and filed with the Florida Office of Insurance Regulation. Additionally, Plaintiff requests that the court take judicial notice of a letter and an updated Amendatory Endorsement filed with the Florida Office of Insurance Regulation on October 10, 2003, and October 13, 2003. respectively.
State Farm countered this request on May 16, 2011 with Defendant’s Motion in Opposition to Plaintiff’s Request for Compulsory Judicial Notice and Request for Hearing Pursuant to Florida Statutes §90.204, noting that judicial notice is not mandatory unless the party requesting it gives adverse parties proper notice and supplies the court with sufficient information for it to take notice. State Farm also mentions in their Motion that it is error for a court to take judicial notice of documents that are not relevant to a material fact at issue.
Defendant incorrectly cites §§90.205(5) and (12)-(13), [sic] [§§90.202(5) and (12)-(13)] Florida Statutes, alleging that the documents Plaintiff requests the court to judicially notice do not fall into the category of documents that may be judicially noticed. The court understands that State Farm must be referring to §§90.202(5) and (12)-(13), as the cited references do not exist. Nu-Best, however, seeks the court to judicially notice the documents under §§90.202(6) and 90.203 and not §§90.202(5) and (12)-(13).
Exhibits Filed with Plaintiff’s Second Request for Admissions
Section 90.202(6) allows the court to take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state . . . .” §90.202(6), Florida Statutes (2010). Since it is proper for the court to take judicial notice of its own records, this court finds that it is proper to take judicial notice of Items 3, 4, and 5 (Exhibit “7”, Exhibit “8”, and Exhibit “9”) of Plaintiff’s Request. See Manchec v. Manchec, 951 So. 2d 1026, 1028 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D822a] (finding no error in a court taking judicial notice of a relevant affidavit in a court file).
Documents Filed with the Florida Office of Insurance Regulation
The plaintiff also requests under §90.202(6) and §90.203 that the court take judicial notice of documents that have not been previously filed with this court, but have been filed with the Florida Office of Insurance Regulation (Filing No. 03-12254) (Items 1 and 2 of Plaintiff’s Request; Exhibits “1” and “2”).
Section 90.203 provides that a court
shall take judicial notice of any matter in s. 90.202 when a party requests it and
(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.
§90.203, Florida Statutes (2010).
See The Scripps Research Inst., Inc., v. The Scripps Research Inst. 916 So. 2d 988 (Fla. 4th DCA 2005) [31 Fla. L. Weekly D72a].
This court finds that Nu-Best did not meet the burden specified in §90.203 for the court to take judicial notice of Exhibits 1 and 2. In its Request, Nu-Best cited §§90.202(6) and 90.203. The letter and updated Amendatory Endorsement Form 6910.2 do not constitute “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States” under §90.202(6).” Therefore, Nu-Best’s request for judicial notice of these documents must be denied.
Accordingly, it is
ORDERED AND ADJUDGED that Defendant State Farm Mutual Automobile Insurance Company’s Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff Nu-Best Whiplash Injury Center, Inc.’s Request for Compulsory Judicial Notice of Exhibit “7”, Exhibit “8”, and Exhibit “9” is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff Nu-Best Whiplash Injury Center, Inc.’s Request for Compulsory Judicial Notice of Exhibit “1” and Exhibit “2” is DENIED.
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