19 Fla. L. Weekly Supp. 536b

Online Reference: FLWSUPP 1907ABDUInsurance — Personal injury protection — Coverage — Denial of benefits — False or misleading statement relating to claim or charges — Trial court erred in ruling that insurer could not assert affirmative defense that medical provider knowingly submitted false or misleading statements relating to claim or charges without first obtaining adjudication of guilt of insurance fraud from Department of Financial Services — Explanation of benefits — Error to grant summary judgment in favor of provider on claim for failure to provide EOB and find that provider is entitled to attorney’s fees on issue, as there is no private cause of action for failing to provide EOB

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. EAST COAST MEDICAL REHABILITATION, INC. a/a/o ALBERTO ABDULLAH, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-310 AP. L.T. Case No. 08-2341CC 21. March 22, 2012. An appeal from the County Court in and for Miami-Dade County. Ana Maria Pando, Judge. Counsel: Thomas L. Hunker, Office of General Counsel, Appellate Division, Miami, for Appellant. Marlene S. Reiss, for Appellee.

(Before SILVERMAN, MUIR, and FREEMAN, JJ.)

(PER CURIAM.) United Automobile Insurance Company (“UAIC”) seeks review the trial court’s orders granting summary judgment in favor of East Coast Medical Rehabilitation, Inc. a/a/o Alberto Abdullah (“East Coast”). These orders found that UAIC was precluded from putting forward a fraud defense pursuant to section 627.736(5)(b)(1)(c), Florida Statutes without first obtaining an adjudication of guilt under section 817.234, Florida Statutes and that UAIC failed to provide an Explanation of Benefits. We reverse the trial court’s entry of summary judgment on these issues for the reasons discussed herein.

Alberto Abdullah was injured in a car accident on May 19, 2007. He sought treatment for his injuries from East Coast and assigned his right to recover personal injury protection (“PIP”) benefits to the company. On May 12, 2008, East Coast filed suit against UAIC alleging that the insurer was refusing to pay for chiropractic treatment provided to Mr. Abdullah in relation to the accident.

In its Amended Affirmative Defenses, UAIC asserted that East Coast’s claim was fraudulent pursuant to section 627.736(5)(b)(1)(c), Florida Statutes, because East Coast billed the insurer for 97033 (iontophoresis), a treatment that UAIC claims was never rendered to the insured. Both parties moved for summary judgment on this issue.

In support of UAIC’s motion, Don Morris, D.C. attested that he visited East Coast on February 7, 2007 and he advised Dr. Carlos Gonzalez that it was “improper to code using BioFreeze (or other topical preparation) as an ultrasound lotion as CPT 97033 iontophoresis.” After a lengthy discussion, Dr. Gonzalez agreed to change the policy so that East Coast’s clinical records and bills would reflect what was actually being done. UAIC alleged that despite this warning, Dr. Gonzalez subsequently billed UAIC for CPT 97033 eight times between May 24, 2007 and June 22, 2007 at a rate of $90.00 per treatment.

UAIC Investigator Freddy Garcia averred that, on June 29, 2007, he visited East Coast with another investigator to investigate the iontophoresis charges. When the investigators asked the East Coast staff to perform the service it was billing as 97033 iontophoresis, the staff performed the procedure by applying some topical BioFreeze gel. Mr. Garcia advised Dr. Gonzalez, the clinic owner, and the East Coast staff that the procedure was ultrasound, not iontophoresis. The staff agreed that the billing code was improper, but a dispute arose over whether or not to withdraw various claims. Thereafter, East Coast billed Mr. Abdullah’s treatments from July 23, 2007 through September 20, 2007 as CPT code 97035 ultrasound (instead of iontophoresis) at a rate of $75.00 per treatment.

East Coast did not put forth any evidence to contradict these allegations. Instead, East Coast argued that UAIC could not allege fraud as an affirmative defense under section 627.736(5)(b)(1)(c) without first obtaining an adjudication of guilt from the Florida Department of Financial Services pursuant to sections 817.234(5) and 627.73(12). The trial court ultimately agreed, finding that UAIC was precluded from putting forward a “fraud defense pursuant to 627.736(5)(b)(1)(c) without having a prior adjudication of guilt, plea of guilty or nolo contendere as to Fla. Stat. 817.234 . . . as the Florida Department of Financial Services Fraud Division has exclusive jurisdiction relating to any misconduct as to violations of the insurance code.” We disagree.

This Court reviews the trial court’s ruling on the motion for summary judgment de novo. In the instant matter, UAIC asserted that East Coast was not entitled to payment pursuant to section 627.736(5)(b)(1)(c), Florida Statutes. Specifically, the subsection provides that “[a]n insurer or insured is not required to pay a claim or charges: . . . [t]o any person who knowingly submits a false or misleading statement relating to the claim or charges[.]” Section 627.736(5)(b)(1)(c) makes no specific mention of insurance fraud; however, UAIC alleged that the actions described therein are, by definition, fraud. Thus, UAIC argued that just because section 627.736(5)(b)(1)(c) “uses a definition of fraud rather than the word ‘fraud’ does not make it any less a fraud provision.”

In response, East Coast asserted that because UAIC alleged that that East Coast committed “insurance fraud” below (while citing section 627.736(5)(b)(1)(c)), the statute should be read in concert with sections 817.234 and 627.736(12), Florida Statutes. Section 817.234(5) permits insurers to recover benefits improperly paid in response to fraudulent claims, where there has been a criminal adjudication of guilt. Section 627.736(12) provides that “[a]n insurer shall have a cause of action against any person convicted of, or who, regardless of adjudication of guilt, pleads guilty or nolo contendere to insurance fraud under s. 817.234[.]” Accordingly, East Coast first argued that UAIC cannot avail itself of a defense under section 627.736(5)(b)(1)(c), Florida Statutes, because insurance fraud is governed by sections 817.234(5) and 627.736(12). However, East Coast also maintained that 627.736(5)(b)(1)(c) is not an insurance fraud provision at all.

Section 627.736(5)(b)(1)(c) makes no mention of any requirement involving an adjudication of guilt, plea of guilty, or nolo contendere under section 817.234 before the denial of a claim. It is not clear what basis there was for the trial court to read such a requirement into this unambiguous section.¹ Section 627.736(5)(b)(1)(c) merely states that an insurer may deny a claim by a person who knowingly submits a false or misleading statement relating to the claim or charges. The splitting of hairs over whether this is in fact “fraud” detracts from the issue of whether there was a genuine issue of material fact regarding whether East Coast “knowingly submit[ted] a false or misleading statement relating to the claim or charges.” The unrebutted facts in evidence suggest that East Coast did just that. Accordingly, the trial court’s Order Granting Summary Judgment in favor of East Coast on this issue should be reversed. See e.g., State Farm Mut. Auto. Ins. Co. v. Chiropractic One, Inc., 18 Fla. L. Weekly Supp. 868a (Fla. 9th Cir. Ct. 2011) (granting an insurer’s Motion for Final Summary Judgment and finding that, where a medical provider made false and misleading statements in claims for PIP benefits, the insurer did not owe the provider PIP or Medpay benefits for any of the claims, and the insured did not owe the provider compensation for services pursuant to 627.736(5)(b)(1)(c)); Fla. Life Reward Health Car, Inc. v. State Farm Fire & Cas. Co., 17 Fla. L. Weekly Supp. 122b (Fla. Dade Cty. Ct. 2009) (granting an insurer’s Motion for Final Summary Judgment and finding that a medical provider that submitted bills to an insurer for x-rays that it did not perform as well as bills for treatment that it did provide was barred from any recovery of PIP benefits; the insurer had alleged fraud pursuant to section 627.736(5)(b)(1)(c)).

The trial court also granted East Coast’s July 18, 2010 Motion for Summary Judgment regarding UAIC’s failure to send an explanation of benefits (“EOB”) and found that East Coast was entitled to attorney’s fees on the issue. Subsequent to this ruling, the Third and Fourth District Courts of Appeal have held that no such private cause of action exists against an insurer. See United Auto. Ins. Co. v. Coastal Wellness Center, Inc., 28 So. 3d 246 (Fla. 4th DCA 2009) [35 Fla. L. Weekly D501a]; United Auto. Ins. Co. v. A 1st Choice Healthcare Systems, 21 So. 3d 124, 128 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a]. East Coast concedes this point, but alleges that this Court need not reverse summary judgment on this issue because it does not affect the ultimate outcome of the case, since no additional damages were assessed against UAIC as a result of the trial court’s ruling. However, the trial court found that East Coast was entitled to attorney’s fees for time spent litigating the EOB issue. Accordingly, the error was not harmless and reversal as to this ground is warranted. We therefore reverse and remand on both grounds for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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¹The County Court cites Ann K Medical Office, Inc. a/a/o Garcia, Marcos vs, Integon Gen. Ins. Corp., 15 Fla. L. Weekly Supp. 1115b (Fla. Dade Cty. Ct. 2008). However, that opinion does not appear to specifically address section 627.736(5)(b)(1)(c).

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