9 Fla. L. Weekly Supp. 397a
Insurance — Personal injury protection — Medical expenses — Where there was a valid assignment of benefits, insured was required to pay benefits directly to medical provider despite fact that bills were not countersigned by insured but, rather, were marked “signature on file” Defendant.
SOUTH FLORIDA OPEN MRI, AS ASSIGNEE OF CONRADO AVILES, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.
County Court, 11th Judicial Circuit in and for Dade County, Small Claims Division. Case No. 01-1377 SP 20 (01). March 26, 2002. Fred Seraphin, Judge. Counsel: Brian Tenzer, Richard Patino, P.A., Hialeah, for Plaintiff. Rashad M. El’Amin, Troy D. Ferguson & Associates, P.A., for Defendant.
ORDER GRANTING PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on January 25, 2002 on Plaintiff’s Motion for Partial Summary Judgment and the Court having considered the pleadings, evidence of record, heard argument of counsel, and being otherwise advised in the premises:
1. The Court finds the following facts:
(a) Conrado Aviles was involved in a motor vehicle accident on August 8, 2000. Plaintiff is a medical provider and assignee of Conrado Aviles who was issued a policy of insurance by the Defendant which provided personal injury protection benefits.
(b) The Plaintiff is the assignee of Conrado Aviles pursuant to a valid assignment of benefits executed in favor of the Plaintiff.
(c) Plaintiff sued Defendant alleging that Defendant wrongly refused to pay medical bills incurred by Conrado Aviles and rendered by Plaintiff a result of the August 8, 2000 accident.
(d) Plaintiff submitted these bills to the Defendant on Health Care Finance Administration 1500 (HCFA) forms. In box number 13 of the forms are typed: “Signature on file.”
(e) Defendant denied payment for the benefits at issue because, inter alia, the bills were not countersigned by Mr. Aviles or her guardian in box number 13.
2. The Court makes the following conclusions of law based upon the foregoing undisputed facts:
(a) The Supreme Court of Florida has observed that,
“For over a quarter of a century, Florida courts have consistently held: `[T]he statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application for benefits. There is no provision in the statute to toll this limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no pay” plan — a result we are sure was not intended by the legislature.
Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) citing Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502, 502 (Fla. 1st DCA 1974); Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3d DCA 1999) Perez v. State Farm Fire & Cas. Co., 746 So. 2d 1123 (Fla. 3d DCA 1999); Fortune Ins. Co. v. Pacheco, 695 So. 2d 394, 395 (Fla. 3d DCA 1997); Martinez v. Fortune Ins. Co., 684 So. 2d 201, 203 (Fla. 4th DCA 1996); Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266, 1268 (Fla. 3d DCA 1995).
Defendant argues that it is exempt from payment of the bills to the Plaintiff because the forms were not countersigned by Mr. Aviles or his guardian. Defendant, furthermore, argues that, because there is a valid assignment of benefits, it cannot pay Mr. Aviles. Essentially, the Defendant is asking this Court to render the “no fault” statute into a “no pay” plan. This is a result not intended by the legislature and this Court holds that the lack of a countersignature is not, as a matter of law, a valid reason to deny payment of benefits when there exists a valid assignment of benefits.
(b) It is significant that the standard HCFA, and more specifically, box number 13, does not provide for an attestation by the person receiving treatment that the services billed on the HCFA were actually rendered. Box number 13 is merely a direction to the insurer to pay the provider directly. Moreover, it is doubtful that a person receiving treatment would be able to attest that the services indicated on a HCFA were actually performed considering the probability that the person receiving treatment or his or her guardian is wholly unfamiliar with the CPT codes used on the form and which medical services, treatment and/or testing procedures the codes represent.
(c)While Florida Statute §627.736(5)(a) does provide that an insurer may pay the medical provider directly if the medical bills are not countersigned, it does not follow that if the medical bills are not countersigned, the insurer may not pay the provider directly. Such reasoning is fallacious and, specifically, is in the form of the fallacious argument form of denying the antecedent. As an example, using the same fallacious form of argument, one can argue that it is hot outside if the temperature is 100 degrees, therefore, it follows that if the temperature is not 100 degrees outside it is not hot. Obviously this argument is fallacious since the temperature outside may be 101 degrees and it will be hot. Accordingly, if the medical bill or bills are not countersigned, a insurer may still pay a provider directly, such as when the provider submits an assignment of benefits to the insurer.
(d) There is also clear and unequivocal language that Florida Statute §627.736(5)(a) is not a mandatory provision with which the insurer must comply. Rather, Florida Statute §627.736(5)(a) states that “the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment” upon certain conditions being met. The word “MAY”connotes an option on the part of the insurer, not a requirement. There is no reference in said provision that the insurer “SHALL” pay directly to the medical provider if certain conditions are met. Had the Legislature wanted or intended to make this a mandatory requirement, it would have used the word “SHALL”, which is normally used in a statute to connote a mandatory requirement rather than a further tense. Drury v. Harding, 461 So. 2d 104 (Fl. 1984). Moreover, while the word “MAY” indicates that the insurance company can pay the medical provider, it also indicates that the insurance company, at its option, may pay the insured directly for the benefits sought by the medical provider. If an insurance company is given an option to pay either the insured or the medical provider, there can be no assignment of benefits. Once an insured assigns his benefits, the insured (assignor) has no further right to make any claim on the contract unless authorized to do so by the medical provider (assignee). State Farm Fire & Cas. Co. v. Ray, 556 So. 2d 811, m 183 (Fla. 5th DCA 1990). Because the Defendant admits there is a valid assignment of benefits, it must pay the Plaintiff directly.
(e) Judicial adoption of the Defendant’s position would create a timing and logistical nightmare for providers vis-a-vis their billing practices: they would either have to implement instantaneous billing each time the patient came into the office for treatment (not a feasible solution), or they would have to constantly contact the patient to come in and countersign the bills, after the fact, multiplied over perhaps numerous visits, being at the mercy of their patients, all in the context of providers having to comply with the time strictures of Section 627.736(5)(b), Florida Statutes, for submission of bills to the insurer.
* * *
