24 Fla. L. Weekly Supp. 1000b
Online Reference: FLWSUPP 2411HENNInsurance — Personal injury protection — Claims — Timeliness — Where insured mistakenly advised medical provider that she had no PIP coverage, and provider did not discover that insured was covered under relative’s PIP policy and bill insurer until more than 35 days after date of service, insurer is not liable for charges — Statutory provision extending 35-day deadline when claim has been submitted to wrong carrier is not applicable
DOC TONY WESTSIDE CHIROPRACTIC, LLC (a/a/o Sydne Hennings), Plaintiff, vs. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-6006 COCE (53). February 13, 2017. Robert W. Lee, Judge. Counsel: Chris Tadros, Phillips and Tadros, Fort Lauderdale, for Plaintiff. John M. Gioannetti, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT RE: LATE BILLING andDENYING PLAINTIFF’S CROSS-MOTION FORSUMMARY JUDGMENT AS TO LATE BILLING
THIS CAUSE came before the Court on January 30, 2017 for hearing of the Defendant’s Motion for Summary Judgment re: Late Billing and the Plaintiff’s Cross-Motion for Summary Judgment as to Late Billing, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Background: This case involves a relatively narrow issue: whether a PIP provider is subject to the 35-day statutory notice requirement when the patient is mistakenly under the belief that she does not have PIP coverage. In this case, the patient Sydne Hennings sought treatment as the result of an automobile accident on April 4, 2014. She did not have her own PIP policy. She was apparently unaware of the intricacies of the Florida PIP law that she would be covered by a relative’s policy as an “omnibus” insured in the same household.1 Although the provider’s staff was trained to make inquiries in this area to assist in uncovering an applicable policy, the process went awry in this particular case.2 At some point later, the Plaintiff discovered the existence of the resident relative’s policy, and then billed USAA for the treatment occurring from April 4, 2014 — May 2, 2014, but not until June 9, 2014, more than 35 days after the date of treatment. The parties agree that this issue presents a question of law.
The Florida PIP law provides a deadline for submitting claims. Under Florida Statute §627.736(5)(c) (2013),
With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services and care [. . .], 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 the electronic transmission date of the statement, except for past due amounts previously billed on a timely basis [. . .].
The parties agree that the Plaintiff failed to provide the statement of charges within 35 days of the treatment. The Plaintiff argues, however, that the 35-day deadline does not apply in this case because the patient did not give the provider any PIP insurance information because she did not have a policy.
To be sure, the statute provides several exceptions to the 35-day rule. As noted, one exception is for hospital services, and another for emergency services, neither of which applies to the facts of the instant case. The statute also provides an exception for failure of the patient to give correct information. Section 627.736(5)(c)1 provides:
If the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with a statement of the charges. The insurer is not required to pay for such charges unless the provider includes with the statement documentary evidence that was provided by the insured during the 35-day period demonstrating that the provider reasonably relied on erroneous information from the insured and either:
a. A denial letter from the incorrect insurer; or
b. Proof of mailing, which may include an affidavit under penalty of perjury, reflecting timely mailing to the incorrect address or insurer (emphasis added).
The Plaintiff argues that the requirement to provide documentation is not triggered in this case because the patient did not give erroneous information about an incorrect insurer. Rather, the Plaintiff urges that only the first sentence in the exception should apply to circumstances involving a complete failure to give information, because the requirement for documentation simply would not make sense in such a context. Stated another way, the Plaintiff argues that the statute provides a blanket and indefinite extension of the 35-day deadline until it obtains correct insurance information.3 The Defendant, however, urges that the statute is clear: the provider must bill within 35 days, unless it bills an incorrect insurer through no fault of its own.
The Defendant’s position has some logic. Whereas a provider would likely, and perhaps reasonably, cease to investigate the identity of the insurance carrier when the patient provides it, the same provider would generally continue to inquire if the patient does not believe it has coverage because of the wide means available to obtain coverage under someone else’s PIP policy. The deposition of Donn Crothers previously referred to reveals as much.
Conclusions of Law. Under Florida law, untimely PIP bills are generally not compensable. See Total Rehab & Medical Centers, Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 362a (Broward Cty. Ct. 2004). As noted, there are a few exceptions. The question is whether one of the exceptions applies in this case. There is no controlling appellate authority in this Circuit on this issue. Two decisions have been reported that reach opposite conclusions. In one, the Honorable John Fry held that section
627.736(5)(c), Florida Statutes proscribes the mechanism and time limits within which a provider must submit its claim for PIP benefits; providing thirty-five (35) days from the date of the service being rendered within which to properly submit its claim to the insurance carrier; extending this time period to seventy-five (75) days upon the timely filing of a Notice of Intent to Treat within twenty-one (21) days of the service being rendered. The Legislature even contemplated situations where the insured or claimant provides erroneous insurance information to the provider and provides relief under certain circumstances. In this case presently before this Court, those circumstances are not present.
Precision Diagnostic of Lake Worth, LLC v. State Farm Mutual Automobile Ins. Co., 24 Fla. L. Weekly Supp. 308b (Broward Cty. Ct. 2016). Under this decision, the exception for failure to furnish “correct” insurance information is triggered only if a provider is given some information to enable the provider to bill an insurer, albeit the incorrect one. It does not cover situations in which the patient believes she does not have coverage, so no insurer is billed.
On the other hand, in the second case, the Seventh Judicial Circuit, sitting in its appellate capacity, held that under the same statute
[a] provider need only bill the PIP insurer within 35 days of receiving the “correct name and address of the insured’s personal injury protection insurer.” The statute does not require that the provider investigate the patient’s coverage.
Desaussure v. Direct General Ins. Co., 18 Fla. L. Weekly Supp. 335a (7th Cir. App. 2011). The appellate court believed that a provider had no obligation to “investigate” who the correct carrier might be. Under this decision, the court viewed the exception as covering both incorrect information and a complete lack of information, but applying the “unless” limitation only to the situations involving incorrect information. This Court does not find the Desaussure court’s reasoning persuasive.
The extension of the 35-day deadline for erroneous insurance information was added to the statute in 2001. Prior to that time, the statute provided no wiggle room, as pointed out by one commentator who praised the amendment:
Prior to the 2001 amendment of F.S. §627.736(5), a provider was arguably required to bill the correct insurer within 30 days regardless of whether the patient was cooperative in furnishing insurance information or provided the incorrect insurance information. Failure to timely determine and bill the correct insurance carrier would result in the provider being precluded from billing the insurer or patient. The subsection contained no exception for delays caused by the patient or any third party, and in fact, did not on its face bar the patient from deliberately or negligently providing the incorrect insurance information and then arguing that neither the insurer nor the patient could be billed for the services since the bills were not timely submitted to the correct insurer.4
R. LAZEGA, FLORIDA MOTOR VEHICLE NO-FAULT LAW — PERSONAL INJURY PROTECTION (P.I.P.) §5:8(g)(4) (2006) (emphasis added).
The Court agrees with the Defendant that the statute is clear and unambiguous. A provider of medical services has 35 days from the date of service to bill a PIP insurer. The statute provides a few specific exceptions, none of which apply to the instant case. Although the result may seem harsh, it is not absurd, as there appears to be a logical (but debatable) reason to distinguish between situations involving incorrect insurance information and those involving a complete lack of insurance information. Further, any seeming harshness is an issue to be redressed by the Florida Legislature. In this case, the provider retains the option to bill the patient, as it was the patient and not the provider who failed to provide the correct information. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Judgment re: Late Billing is hereby GRANTED, and the Plaintiff’s Cross-Motion for Summary Judgment as to Late Billing is DENIED.
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1Deposition of Donn Crothers, Mar. 29, 2016, p. 38, 1. 23 — p. 39, 1. 2. See Fla. Stat. § 627.736(1) (2013) (PIP policy covers “relatives residing in the same household”).
2Deposition of Donn Crothers, Mar. 29, 2016, p. 23,11. 4-18.
3Plaintiff’s Cross-Motion for Summary Judgment, ¶ III(4).
4Although not necessary to the Court’s decision, the Court seriously doubts whether a patient can “deliberately or negligently” provide incorrect insurance information, and then use that as a shield not to pay medical expenses. Such a scenario would appear to strongly militate in favor of application of such doctrines of waiver, estoppel, unclean hands, and other similar bars to relief. Moreover, the statutory penalty to lose the right to hold the patient liable for medical expenses is triggered when the “provider fails to comply.” Under the instant set of facts, it was the patient, and not the provider, who failed to comply.
