22 Fla. L. Weekly Supp. 853a
Online Reference: FLWSUPP 2207LOPEInsurance — Personal injury protection — Coverage — Medical expenses — Timeliness of claim — Insurer may not challenge timeliness of claim for which it has already paid PIP benefits
DOUGLAS DIAGNOSTIC CENTER, INC., (Maria Elena Lopez), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-00976 COCE (53). January 9, 2015. Honorable Robert W. Lee, Judge. Counsel: Steven Lander, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Ryan J. Luering, Roig Lawyers, Deerfield Beach, for Defendant.
REVERSED. FLWSUPP 2509LOPE
AMENDED ORDER DENYING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on DEFENDANT’s MOTION FOR FINAL SUMMARY JUDGEMENT AS TO FLA. STAT. § 627.736(5)(c)(1), and the Court’s having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED:
The Court DENIES Defendant’s Motion for Summary Judgment of late billing. The relevant facts are: Plaintiff performed x-rays on the claimant on March 5, 2009. Dr. Juan Garcia (owner) signed the bill on April 13, 2009. Plaintiff submitted the bill on April 14, 2009 as identified by the attached certified receipt. Defendant received Plaintiff’s bill on April 17, 2009. On May 5, 2009 the Defendant paid the bill, albeit at a reduced amount. The explanation of review submitted with payment omitted any reference that the Plaintiff’s bill was submitted outside the requisite 35 days. Thereafter, on January 30, 2012 the Plaintiff sent its pre-suit demand, which alleged that nothing was paid from Defendant and that 80% of the entire bill was due. The Defendant failed to make any reference to Plaintiff’s submission as being untimely in its response to the same demand. In light of the recent case of Florida Medical and Injury Center, Inc. v. Progressive Express Insurance Company [35 Fla. L. Weekly D215b], this Court finds the Defendant waived its right to defend on untimely billing. See 29 So.3d at 341 (insurer waives defects in claim — other than RRN — by failing to advise provider of specific reason claim is denied or partially paid). Nowhere does the Legislature note that the carrier can address timely billing after payment. If the Legislature had intended to do so the statute would have explicitly said so.
The Court is mindful of United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 990 So.2d 574 [33 Fla. L. Weekly D1846b], wherein the provider’s bill was initially denied in its entirety, due to an IME cutoff. The Garrido court ruled that the Defendant had not waived its right to assert untimely bills as a defense. That is much different than the case at bar, wherein payment waived the carrier’s right to dispute late billing.
The Court is additionally mindful of Coral Imaging Services v. Geico Indem. Ins. Co., 955 So.2d 11 [31 Fla. L. Weekly D2478a] but finds Florida Medical and Injury Center, Inc. vs. Progressive Express Insurance Company more persuasive as the more recent appellate ruling.
