17 Fla. L. Weekly Supp. 886a
Online Reference: FLWSUPP 1710BARR
Insurance — Personal injury protection — Coverage — Medical expenses — Notice of loss — Insured failed to put insurer on notice of claim for services rendered by emergency room physician where bills were not properly submitted to insurer and where no demand letter was sent for payment of emergency room physician’s bills — Error to enter directed verdict for plaintiff on this issue — Disclosure and acknowledgment form must be executed at time of initial medical services upon which claim for PIP benefits is based — Entity which only provided reading and interpretations of diagnostic services is not exempt from D&A requirement — Error to enter directed verdict in favor of plaintiff on issue of D&A form — Reasonable, related, and necessary treatment — Error to enter directed verdict on issue of whether bills were reasonable, related, and necessary where evidence was conflicting
UNITED AUTOMOBILE INS. CO. Appellant, v. RICHARD BARRET, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-202 AP. June 15, 2010. An appeal filed from the County Court in and for Miami-Dade County, Robin Faber, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, Miami, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before STACY D. GLICK, JORGE E. CUETO, DAVID C. MILLER, JJ.)
(PER CURIAM.) (CUETO, J.) Appellant Automobile Ins. Co. (Appellant) appeals the trial court’s entry of final judgment on directed verdict in favor of Richard Barret (Appellee), filed on April 10, 2008. The standard of review for directed verdict is whether the trial court abused its discretion in deciding there was no evidence on which a jury could lawfully return a verdict in favor of the adverse party. Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So. 2d 398 (Fla. 2d DCA 1988). The trial court erred in granting Appellee’s Motion for Directed Verdict on the issues of notice, reasonable related and necessary, and disclosure and acknowledgment (D&A).
By not submitting the Emergency Physician’s bill Appellee failed to put Appellant on notice. The pertinent part of § 627.736(5)(d) Fla. Stat. reads:
[a]ll statements and bills for medical services rendered. . . shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form. . .or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. . .for purposes of paragraph 4(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.
The first time Appellant became aware of the bill was when it was shown to the Appellant’s adjuster two years into the lawsuit. Appellee did not properly submit the Emergency Physician’s bill in accordance with § 627.736(5)(d) Fla. Stat.
In addition, Appellee admitted that no demand letter was sent to Appellant for payment of the Emergency Physician’s bills. Therefore, Appellee failed to give Appellant adequate notice. A demand letter is material to determining whether there is a legitimate covered loss. If a demand letter is not submitted, the plaintiff must move to abate or voluntarily dismiss the action and send a compliant demand letter before re-filing the lawsuit. Progressive Express Insurance Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008). Also, an amendment to a complaint is required if there is an attempt to cure a non-compliant presuit demand letter. Appellee never filed a demand letter and never filed an amended complaint. See Simon v. Progressive Express Ins. Co., 11 Fla. Law Weekly Supp. 347a (Fla. Palm Beach Cty. Ct. Feb. 5, 2004).
Furthermore, the court is not allowed to pass on the credibility of witnesses or weigh the evidence in ruling on the motion. Dr. Suarez’s and Ms. Gonzalez’s testimonies regarding whether the bills from Reading Tech. and the Emergency Physician’s were reasonable, related and necessary show that there is conflicting evidence. Where there is conflicting evidence, the trial court must send the question to the jury. The trial court seems to have made its directed verdict ruling based on the weight of the evidence presented. This is not permitted and as a result, the directed verdict should be reversed and the case remanded for a new trial on the merits. Lundquist v. Alewine, 397 So. 2d 1148 (Fla. 5th DCA 1981).
On the issue of the D&A form, Appellant also argues that Reading Tech. is exempt from submitting a D&A form because Reading Tech. only provided reading and interpretations of diagnostic services outside the presence of Appellee. In Chiropractic Radiology Consultants, P.A. a/a/o Ida Forbes v. Appellant Automobile Insurance Company, No. 06-6128 SP 23 (Fla. Dade Cty. Ct. June 2009) [17 Fla. L. Weekly Supp. 199b], the court held that the D&A form must be submitted for diagnostic services for reading an x-ray. The Forbes court specifically rejected the argument that the exemption from the countersignature requirement acts as an exemption from the form requirement. Under the plain meaning of § 627.736(5)(e)(1) Fla. Stat., the D&A form must be executed at the time of the initial medical services upon which a claim for PIP benefits is based. Orthopedic Clinic of Daytona Beach, P.A. a/a/o Joseph Powers v. USAA Cas. Ins. Co., 16 Fla. L. Weekly Supp. 1158b (Fla. 7th Jud. Cir. Ct. Oct. 1, 2009). Nowhere in the plain language of the PIP statue does it specifically exempt Appellee from compliance with the D&A form or state that it would be inapplicable to Appellee. In the instant case, a D&A form was never submitted therefore, Appellee failed to comply with § 627.736(5)(e)(1) Fla. Stat.
REVERSED AND REMANDED FOR A NEW TRIAL (GLICK, CUETO, and MILLER, JJ.)