25 Fla. L. Weekly Supp. 783a
Online Reference: FLWSUPP 2509LOPEInsurance — Personal injury protection — Claims — Timeliness — Trial court erred in holding that insurer waived right to contest timeliness of PIP bills by making partial payment on bills
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DOUGLAS DIAGNOSTIC CENTER, INC., a/a/o Maria Elena Lopez, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE15-004837 (AP). L.T. Case No. COCE13-000976. November 14, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Robert W. Lee, Judge. Counsel: Nancy W. Gregoire, of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for Appellant. Marlene S. Reiss, of Marlene S. Reiss, P.A., Miami, for Appellee.
[Lower court order published at 22 Fla. L. Weekly Supp. 853a.]
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Douglas Diagnostic Center, Inc. (“DDC”). Having carefully reviewed the briefs, the record and the applicable law, this Court dispenses with oral argument, and finds that the final judgment should be reversed as set forth below.
In the underlying case, DDC sued State Farm for breach of contract for personal injury protection benefits. State Farm filed an amended motion for summary judgment as to the timeliness of DDC’s bills. The trial court denied State Farm’s motion on the basis of waiver. The trial court entered final judgment in favor of DDC as a matter of law on: (1) the timeliness of DDC’s billing, and (2) the reasonableness of DDC’s charges for the services rendered. This appeal followed.
“‘The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo.‘” Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D193a] (quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)) [26 Fla. L. Weekly S465a].
State Farm argues that the trial court erred in denying State Farm’s amended motion for summary judgment as to the timeliness of DDC’s bills. In holding that State Farm had waived its objection as to the timeliness of DDC’s bills, the trial court relied on Florida Medical and Injury Center, Inc. v. Progressive Express Insurance Company, 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. The Fifth District Court of Appeal held that Progressive Express Insurance Company waived its right to contest a defect in a Disclosure and Acknowledgement (“D & A”) Form because the insurance company had already paid a portion of the bill. However, the issue in Florida Medical and Injury Center, Inc. is one of notice. See Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So. 3d at 341 (“Even if the insurer’s theory about notice were to prevail, when an insurer receives a claim and the provider’s D & A form is deemed deficient for some reason, the insurer can either pay or refuse to pay on the ground that proof without the proper D & A form is not notice. If the insurer fails to specify the defect in the form so that it can be rectified as contemplated by subsection (4), it will be deemed to have waived its objection to payment.”) The court essentially ruled that Progressive Express Insurance Company, after having made a payment, could not maintain that it did not have notice of the claim simply because the D & A form was defective. See Id.
The instant case is distinguishable from Florida Medical and Injury Center, Inc. The issue in the instant case is one of obligation not notice. Section 627.736(5)(c), Florida Statutes, provides, in pertinent part, as follows:
(c) With respect to any treatment or service, . . ., 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.
§ 627.736, Fla. Stat. The trial court incorrectly ruled that State Farm, by making a partial payment of DDC’s bills, waived its right to contest the timeliness of DDC’s bills. See United Auto. Ins. Co. v. Garrido, 990 So. 2d 574, 575 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1846b] (“Under section 627.736(5)(c)(1), an insurer has no obligation to pay late-filed bills.”); see also Coral Imaging Servs. v. Geico Indem. Ins. Co., 955 So. 2d 11, 15 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a] (finding that the statute prohibits the submission as well as the payment of late charges or deems the payment of late charges as gratuitous). Further, “failing to check ‘late billing’ as a reason for denying payment of untimely bills on an explanation of benefits form” does not constitute a waiver of section 627.736(5)(c)(1). Garrido, 990 So. 2d at 575.
In the instant case, the summary judgment evidence establishes the following undisputed facts. DDC administered the x-rays on March 5, 2009. DDC’s notice of initiation of medical treatment is postmarked March 27, 2009, 22 days after administration of the x-rays. DDC’s bill is postmarked April 14, 2009, 39 days after administration of the x-rays. The undisputed facts show that DDC did not comply with the statutory requirements for timely submission of its notice of initiation of treatment or its bill.
Therefore, the trial court erred in denying State Farm’s amended motion for summary judgment as to the timeliness of DDC’s bills. Having come to this conclusion, this Court need not reach the issue of whether the trial court erred in granting DDC’s motion for summary judgment and denying State Farm’s cross-motion for summary judgment as to the reasonableness of the charges.
Accordingly, the final judgment in favor of DDC is hereby REVERSED and this case is REMANDED for proceedings consistent with this Opinion. DDC’s Motion for Appellate Attorney’s Fees and Costs is hereby DENIED. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED with the amount to be determined by the county court upon remand, contingent upon a determination that State Farm’s proposal for settlement is enforceable. (BIDWILL, RODRIGUEZ, SINGHAL, JJ., concur.)
