22 Fla. L. Weekly Supp. 676a

Online Reference: FLWSUPP 2206SCHOInsurance — Personal injury protection — Notice of loss — Disclosure and acknowledgment form — Trial court erred in entering summary judgment in favor of insurer on D&A form defense — Submission of form is not condition precedent to payment of PIP benefits — Exhaustion of policy limits — Insurer’s reliance on then-existing legal authority regarding D&A form requirement to deny claim, which ultimately resulted in exhaustion of benefits, cannot be considered bad faith

PEMBROKE PINES, MRI, INC., a/a/o Brian Schoedinger, Appellant/Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Appellee/Defendant. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-017384 CACE14. L.T. Case No. 08-09857 COCE53. May 18, 2012. Motion for Rehearing November 17, 2014.

[Lower Court Opinion published at 17 Fla. L. Weekly Supp. 479a.]OPINION

(GOLD, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon Appellant, Pembroke Pines, MRI, Inc.’s (“PPMRI”), appeal from a County Court Final Summary Judgment in favor of Appellee, USAA Casualty Insurance Company (“USAA”). The Court having considered the briefs filed by the parties and being duly advised in the premises and law, dispenses with oral argument, and finds and decides as follows:Factual Background¹

On January 22, 2008, Brian Schoedinger (“Schoedinger” or “the Insured”) was involved in an automobile accident, and as a result of which, he sustained injuries. R. 1. At the time of the automobile accident, Schoedinger was covered under an insurance policy issued by USAA that provided personal injury protection (“PIP”) coverage. As a result of his injuries arising from the automobile accident, Schoedinger sought and received medical treatment from PPMRI.

Following the treatment, on February 25, 2008, PPMRI, as assignee of Schoedinger, mailed a transmittal letter seeking payment from USAA pursuant to the PIP insurance contract that was entered into between Schoedinger and USAA. Appellant’s Initial Br. at 4. PPMRI sent a transmittal letter to USAA seeking coverage, to which USAA responded:

The required Disclosure and Acknowledgement form has not been received or is not compliant for this patient and treating provider. For more information, refer to Florida Statutes, Section 627.736(e)1, 9.

Id. at 5.

Based upon USAA’s denial of its claim, on June 18, 2008, PPMRI, as assignee of Schoedinger, filed a complaint against USAA for PIP benefits arising from PPMRI’s medical treatment of Schoedinger. R. 1-4. USAA answered the complaint and asserted the following relevant affirmative defenses:

1. No amounts are due and owing from [USAA] under this contract of insurance, as all PIP benefits stemming from the insurance policy at issue have been exhausted.

2. [PPMRI’s] claim fails to satisfy the requirement imposed by § 627.736 5(e). Specifically, [PPMRI] failed to provide USAA with a standard disclosure and acknowledgement form. Accordingly, USAA shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due.

R. 6-9.

On January 8, 2009, USAA moved for summary judgment, specifically arguing it was entitled to judgment as a matter of law because 1) PPMRI failed to submit a properly completed disclosure and acknowledgement form (“D&A Form”); and 2) all PIP benefits under the policy had been exhausted. Id. at 77-103. On February 27, 2009, the lower court denied USAA’s application for summary judgment. Id. at 216. However, in doing so, the lower court determined that there was no dispute that PIP benefits had been exhausted subsequent to PPMRI’s lawsuit. Id.

While the above mentioned motion for summary judgment was pending before the lower court, PPMRI moved for leave to amend its complaint to assert a claim that USAA had exhausted benefits in bad faith. On February 20, 2009, the lower court granted PPMRI’s motion to amend. Id. at 198.

Thereafter, on August 13, 2009, PPMRI filed a motion for summary judgment arguing that it had sufficiently provided USAA with notice of its claim for PIP benefits. Id. at 314-333. On September 23, 2009, the lower court granted PPMRI’s August 13, 2009 motion for summary judgment in all respects except: 1) whether USAA exhausted benefits in good faith; and 2) whether PPMRI failed to supply USAA with a properly completed D&A Form. Id. at 537.

In early 2010, each party filed a renewed motion for final summary judgment. Id. at 672-677, 733-759. On March 29, 2010, the lower court entered final summary judgment in favor of USAA, specifically finding that USAA did not exhaust benefits in bad faith. Id. at 781-782. As such, final summary judgment was entered in favor of USAA. Id. On April 20, 2010, PPMRI timely filed this appeal to the trial court’s March 29, 2010 Final Summary Judgment in Favor of [USAA].Standard of Review

When reviewing a trial court’s entry of summary judgment, an appellate court applies a de novo standard of review. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]. Summary judgment is appropriate “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510 (c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. Unless the material facts are so crystallized that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Moreover, “the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966).Parties’ Arguments

On appeal, PPMRI argues that the trial court erred in entering final summary judgment in favor of USAA because 1) the trial court improperly determined issues of fact, specifically, that PPMRI failed to furnish USAA with a properly completed D&A Form; 2) the trial court retroactively imposed a duty on PPMRI to send a duplicate D&A Form; 3) based upon recent appellate case law prior to the entry of summary judgment, the failure to tender the D&A Form was immaterial, and, therefore, the entry of summary judgment in favor of USAA on its D&A Form affirmative defense was error; and 4) after receiving notice of the disputed claim, USAA acted in bad faith when it continued to pay other claims causing it to exhaust benefits under the PIP contract.

In opposition to PPMRI’s appeal, USAA argues that it properly denied PPMRI’s claim for PIP benefits because PPMRI’s alleged failure to tender a properly completed D&A form constituted reasonable proof to support the denial of the claim. Moreover, notwithstanding the deficient D&A Form, USAA argues that the entry of summary judgment in its favor was appropriate because it did not exhaust benefits in bad faith as it relied on then existing law as put forth in various county and circuit court decisions. Specifically, the case law relied upon by USAA determined that a medical provider’s failure to submit a D&A Form was fatal to a claim for PIP benefits.Analysis and Conclusion

It is well settled that an appellate court reviews the merits of an appeal “in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.” Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978). As such, after a review of the briefs and record in this matter, this Court finds that the arguments made with regard to USAA’s D&A Form affirmative defense are controlled by United Automobile Insurance Company v. Professional Medical Group, 26 So. 3d 21 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] (hereinafter referred to as “PMG”), and Florida Medical & Injury Center, Inc. v. Progressive Express Insurance Company, 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] (hereinafter referred to as “FMIC”). As the Court cannot locate any controlling Fourth District Court of Appeal decision on this issue, the Court is bound by the PMG and FMIC decisions. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (noting that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts,” and that “ ‘decisions of the district court of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme Court]’ ”) (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)).

Florida’s PIP statute requires that a D&A Form must be completed by the medical provider and patient at the patient’s initial visit and for such form to be furnished to the insurer. § 627.736, Fla. Stat. (5)(e)1, 5. According to the court in FMIC, the purposes of the D&A Form “are to enhance patient understanding of their treatment and to discourage fraud by unscrupulous medical providers, especially the submission of claims for services not actually performed on the patient.” FMIC, 29 So. 3d at 332.

In PMG, the medical provider filed a complaint seeking unpaid PIP benefits. PMG, 26 So. 3d at 23. The insurer filed an answer and affirmative defenses, specifically claiming, inter alia, that it did not receive written notice of a covered loss because the medical provider failed to submit a D&A Form with its initial submission of medical bills. Id. Although the insurer conceded that the medical provider submitted a properly completed D&A Form prior to litigation, the insurer maintained its position that “a failure to provide a D[&]A form with the initial, timely set of bills results in a failure to place the insurer on notice of a covered loss.” Id. at 23-25. Ultimately, the trial court granted summary judgment for the medical provider. Id. at 23.

On appeal, the Third District Court of Appeal noted the insurer’s argument concerning the failure of the medical provider to submit a D&A Form, but stated that “[t]here is nothing in the language of [the PIP] statute that supports [the insurer’s] conclusion that a failure to provide a D and A form with the initial, timely set of bills cannot be cured.” Id. at 25. As such, the Third District affirmed the grant of summary judgment in favor of the medical provider. Id.

Similarly, in FMIC, the Fifth District Court of Appeal was not “persuaded by [the insurer’s] argument that submission of an incomplete D&A form is the equivalent of no written notice of a claim.” FMIC, 29 So. 3d at 337. Rather, the Fifth District noted that “[t]here is no language in paragraph (5)(e) that even suggests that failure to provide the properly completed form to the insurer is failure to provide ‘notice of the covered loss’ to the insurer, or that such failure will render the provider’s bills not payable.” Id. at 338. Significantly, the Fifth District further held that the requirement of a D&A Form is not a condition precedent to the payment of PIP benefits. Id. at 339-342. In doing so, the Fifth District noted that “[t]he PIP statute does not specify . . . any remedy for failure to correctly complete the form or even for the complete failure to furnish the insurer with this form,” and that “[t]he courts are not at liberty to manufacture one.” Id. at 341. As such, based on the Fifth District’s decision in FMIC, this Court finds that the failure of a medical provider to submit a D&A Form is not a bar to recovering PIP benefits or seeking such benefits through litigation.

In the current case, pursuant to the decisions in PMG and FMIC, the Court must agree with PPMRI on its argument pertaining to the D&A Form. Although PPMRI never tendered a D&A Form to USAA, pursuant to the decisions in PMG and FMIC, the submission of a D&A Form, flawless or not, is not a condition precedent to payment of PIP benefits. Moreover, this Court finds that, under FMIC, the failure to submit the D&A Form does not preclude a medical provider like PPMRI from filing a claim for PIP benefits. As such, the entry of summary judgment in favor of USAA on its D&A Form affirmative defense was made in error as it was made in contravention of FMIC.

However, USAA’s reliance on then existing legal authority (prior to PMG and FMIC) to deny PPMRI’s claim, which ultimately resulted in the exhaustion of PIP benefits, cannot be considered bad faith. As noted above, the case law relied upon by USAA specifically determined that the failure to submit a flawless D&A Form was fatal to a medical provider’s claim for PIP benefits. Prior to the Fifth District’s decision in FMIC, there were conflicting decisions among the various trial court’s throughout the state concerning the effect of a medical provider’s failure to submit a flawless D&A Form to an insurer. See FMIC, 29 So. 3d at 331 n.1. Moreover, as the Fourth District Court of Appeal has noted, there is no requirement for an insurer to set aside funds when it denies a medical provider’s claim for PIP benefits. See Simon v. Progressive Express Ins. Co., 904 So. 2d 449, 450 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b] (declining “to create a requirement that an insurance company set aside a ‘reserve’ fund for claims that are reduced or denied”). As such, this Court must agree with the lower court’s decision concerning USAA’s exhaustion of benefits affirmative defense, and as such, must affirm this portion of the trial court’s judgment.

However, as noted above, to the extent that the lower court failed to rely on PMG and FMIC with regard to USAA’s D&A Form affirmative defense, the lower court erred and it should have directed judgment for PPMRI. Therefore, with regard to the D&A Form issue, this matter must be reversed and remanded for the trial court to enter judgment in favor of PPMRI and against USAA. As a result, PPMRI is the prevailing party, and, therefore, entitled to appellate attorney’s fees pursuant to section 627.428, Florida Statutes. As such, on remand, it is incumbent upon the trial court to hold a hearing on the reasonableness and amount of PPMRI’s attorney fees.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Final Summary Judgment In Favor of Defendant, dated March 29, 2010, is AFFIRMED IN PART and REVERSED IN PART.

IT IS FURTHER ORDERED that this matter is REMANDED to the trial court for proceedings consistent with this Opinion.

IT IS FURTHER ORDERED AND ADJUDGED that Appellant’s Motion for Appellate Attorney’s Fees is GRANTED and Appellee’s Motion for Appellate Attorney’s Fees is DENIED. On remand, the trial court shall determine the amount of Appellant’s appellate attorney’s fees. [Editor’s Note: See Order on Motion for Rehearing published below.]

__________________

¹The pertinent factual background is compiled using the parties’ briefs and portions of the record on appeal.

ORDER GRANTING PEMBROKE PINES MRI, INC.’SMOTION FOR CLARIFICATION AND/OR REHEARINGOF SEPTEMBER 23, 2014 ORDER GRANTINGAPPELLATE ATTORNEY’S FEES TO “APPELLEE”

(LYNCH, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, on Pembroke Pines MRI, Inc.’s (“PPMRI”) Motion for Clarification and/or Rehearing of September 23, 2014¹ Order Granting Appellate Attorney’s Fees to “Appellee.” This Order solely addresses PPMRI’s argument with regard to appellate attorney’s fees. After a careful review of the motion and response² thereto, the record, and the applicable law, it is hereby:

ORDERED that Pembroke Pines MRI, Inc.’s Motion for Clarification and/or Rehearing of September 23, 2014 Order Granting Appellate Attorney’s Fees to “Appellee” is GRANTED. Upon further review, neither Pembroke Pines MRI, Inc. nor USAA Casualty Insurance Company is entitled to appellate attorney’s fees in the instant action.

IT IS FURTHER ORDERED that no further motions for rehearing or clarification may be filed.

__________________

¹Although signed on September 23, 2014, the order on the parties’ respective motions for rehearing was rendered on October 7, 2014.

²On October 8, 2014, USAA Casualty Insurance Company filed a response.

* * *