24 Fla. L. Weekly Supp. 972c
Online Reference: FLWSUPP 2411RICKInsurance — Personal injury protection — Coverage — Medical benefits — Notice of claim — CMS 1500 form or medical bill submitted within 21 days of service does not qualify as “a notice of initiation of treatment” for purposes of statute stating that statement of charges may not include charges for treatment or services rendered more than 35 days before postmark date or electronic transmission date of the statement unless provider submits to the insurer a notice of initiation of treatment within 21 days of first examination or treatment of claimant, in which case the statement may include charges for treatment or services rendered up to 75 days before postmark date of statement — Payments made by insurer in response to untimely statement were gratuitous and did not count as benefits paid under PIP policy when determining whether policy limits were exhausted
PRESGAR IMAGING OF DAYTONA LLP D/B/A OPEN MRI OF DAYTONA a/a/o Roy Rickard, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 34046 COCI. January 30, 2017. Dawn Fields, Judge. Counsel: David Bender, Shuster & Saben, LLC, Satellite Beach, for Plaintiff. Tina Ann Dampf, Law Office of Julie Lewis Hauf, Winter Park, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARYJUDGMENT REGARDING EXHAUSTION OF BENEFITS ANDDENYING DEFENDANT’S CROSS MOTION FOR SUMMARYJUDGMENT REGARDING EXHAUSTION OF BENEFITS
THIS CAUSE, having come before the Court on Plaintiff’s Motion for Summary Judgment and Defendant’s Cross Motion for Summary Judgment, and the Court having reviewed the Motions, arguments of counsel, and being otherwise fully advised, finds as follows:
Factual Background
Plaintiff in this matter, PRESGAR IMAGING OF DAYTONA, LLP, d/b/a OPEN MRI OF DAYTONA is a healthcare provider, who rendered treatment to ROY RICKARD (“Insured Rickard”) on March 25, 2013, for injuries that the Insured Rickard reported were sustained in a motor vehicle accident that occurred on July 14, 2012. At the time of the accident, Insured Rickard was covered under a policy of insurance issued by the Defendant, which provided $10,000.00 in Personal Injury Protection benefits. Defendant made payments to various medical providers, including the Plaintiff, pursuant to the policy of PIP Insurance and Section 627.736, Florida Statutes. One of such payments was made to Halifax Orthopaedic Clinic (“Halifax”)
Halifax submitted multiple bills for medical services rendered. The medical bills relevant to the issue in this case are for dates of service October 10, 2013, which was received by Defendant on December 19, 2013, and date of service October 22, 2013 which was received by Defendant on December 19, 2013. The CMS 1500 forms submitted by Halifax, for these dates of service, were postmarked more than 35 days after the services were rendered. No other document other than the initial medical bill was submitted by Halifax to Defendant within 21 days of its first treatment.
Issue
The statute requires that all CMS 1500 forms be postmarked within 35 days of the service, except that if the provider submits “a notice of initiation of treatment” within 21 days, the CMS 1500 forms may be postmarked within 75 days of the service. Plaintiff argues that the a CMS 1500 form or medical bill submitted within 21 days does not qualify as “a notice of initiation of treatment” according to the statute and that, therefore, the payments made to Halifax were gratuitous, and, as such, benefits still remain under the policy.
Defendant argues that because Halifax provided Defendant with notice of initiation of treatment in the form of its CMS-1500 submitted to Defendant within 21 days of its first treatment of Claimant, Halifax was permitted to submit bills to Defendant for “charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement.” Relying on this, Defendant argues, it, in good faith, paid Halifax’s medical bills for dates of service October 10, 2013 and October 22, 2013, upon receipt in December 2013. As such, Defendant argues, these payments were not gratuitous. Further, because Defendant exhausted Claimant’s PIP Benefits in good faith, it is not responsible for any additional payment to Plaintiff.
Summary Judgment Standard
Florida Rule of Civil Procedure 1.510(c), provides that “summary judgment should be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.” Where the facts are such that if established there could be no recovery or where the undisputed facts would preclude recovery, then the question becomes one of law for determination of the Court and a proper matter for disposition by Summary Judgment. See Florida Bar v. Greene, 926 So.2d 1195 (Fla. 2006) [31 Fla. L. Weekly S212a]; Yost v. Miami Transit Co., 66 So.2d 214 (Fla. 1953); Holl v. Talcott, 191 So.2d 60 (Fla. 1966). Although a movant for summary judgment has the initial burden to show the nonexistence of any genuine issue of material fact once competent evidence is tendered, the opposing party must come forward with counter-competent evidence to reveal a genuine issue of material fact. See Landers v. Milton, 370 So.2d 368 (Fla. 1979); Kolnick v. Fountainview Assoc., Inc. #2, 737 So.2d 1192 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1695b].
Conclusions of Law
The relevant portion of the No Fault Law. is Fla. Stat. §627.736(5)(c), states, in pertinent part:
(c) With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services and care as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, 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 electronic transmission date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement. The injured party is not liable for, and the provider may not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. (Emphasis added.)
The Court begins its analysis in construing a statute by striving to effectuate the Legislature’s intent. To determine intent, the Court should first look to the statute’s plain language. A plain reading of Fla. Stat. §627.736(5)(c) in this case indicates that the Legislature uses the words “statement of charges” or “statement” on four separate occasions when describing a medical bill or CMS 1500 form. However, the statute uses a different phrase, “a notice of initiation of treatment,” within this same paragraph when it states what must be submitted to extend the time frame to submit a CMS 1500 form from 35 to 75 days. Therefore, the plain language of the statute indicates that “a notice of initiation of treatment” is something entirely separate and distinct from a CMS 1500 form or medical bill.
Both parties acknowledge that case law in this area is limited but this Court is persuaded by Hands for Health, Inc. v. Allstate Ins. Co., 11 Fla. L. Weekly Supp. 128b (9th Judicial Circuit, County Court, 2003), where the Court found that the Plaintiff, a healthcare provider, who was required to submit its charges for treatment rendered to Defendant’s insured within 30, had availed itself of the explicit exception set forth in Section 627.736(5)(b), Florida Statutes (2000), by having timely submitted a Notice of Initiation of Treatment to Defendant, thereby extending the time for submission of all charges from 30 days to 60 days.
As Defendant argues, the PIP statute does not provide a definition of “notice of initiation of treatment” nor does it include any specific requirement regarding the form such notice must take. However, “(o)ne of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla. 1992). “If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” Id. at 473. The plain and ordinary meaning of the words “notice”, “initiation” and “treatment” are that the provider is warning/heeding/advising that the provider is commencing/beginning/starting a course of steps designed to make the patient better, which differs from a “statement of charge”, which is information/document of things already complete and done.
This Court, therefore, finds that the CMS 1500 forms from Halifax Orthopaedic Center for dates of service October 10, 2013 and October 22, 2013 were untimely as they were not postmarked within 35 days of the service. Halifax Orthopaedic Center was not put on the 75 day billing cycle as it failed to submit “a notice of initiation of treatment.” Therefore, the payments in the amount of $1,067.20 were gratuitous.
Because the Court has found that the CMS 1500 forms from Halifax for dates of service October 10, 2013 and October 22, 2013, were untimely, it now considers Defendant’s second argument that because there was no bad faith, the policy limits were properly exhausted. A review of the appellate case law reveals that gratuitous payments are not benefits under a personal injury protection policy and therefore the Defendant’s argument is misplaced.
Usually once an insurer pays out its policy limits, thus exhausting benefits; it is no longer responsible for subsequent payments. See Simon v. Progressive Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; Sheldon v. United States Automobile Ass’n., 55 So.3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a]; Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; Geico Indemnity Co. v. Gables Ins. Recovery, Inc., Case No. 3D13-2264 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2561a]. However, an insurer’s exhaustion of PIP benefits in and of itself does not automatically shield the insurer from liability for benefits that exceed policy limits. There is an instance that warrants the imposition of liability on an insurer where policy benefits have been wrongly exhausted. See Coral Imaging Services v. Geico Indemnity Ins. Co., 955 So.2d 11 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a]. In Coral Imaging, the Court was presented with the exact situation as presents itself in this case. The insurance company was attempting to defend the lawsuit based on an exhaustion of benefits defense. The Plaintiff argued that because the insurance carrier paid for untimely bills, benefits remained. The Court held that an insurer is prohibited from paying untimely bills, or if payment is made, they are gratuitous. These gratuitous payments cannot count toward benefits paid under the insurance policy.
Defendant improperly paid for two dates of service which were submitted untimely, in the total amount of $1,067.20. Based upon the binding case law, the Defendant remained free to pay this provider for these untimely bills, however the payments were in express contravention of the PIP statute and therefore are considered gratuitous and not considered payments under the PIP policy. Because the payments are considered gratuitous, they are not benefits under the policy and therefore the Court does not need to determine whether Defendant’s actions were in bad faith as there are benefits remaining under the policy.
Accordingly, it is hereby, ORDERED AND ADJUDGED: Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s Cross Motion for Summary Judgment is DENIED
