5D09-889 Progressive American v. Preziosi

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-889

Case Date: 01/18/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

FLORIDA MEDICAL & INJURY CENTER, INC., etc., Petitioner, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent. ____________________________ __/ PROGRESSIVE AMERICAN INSURANCE COMPANY, Petitioner, v. PREZIOSI WEST/EAST CHIROPRACTIC, ETC., Respondent. ________________________________/ Opinion filed January 22, 2010 Petition for Certiorari Review of Decision from the Circuit Court for Seminole County Acting in its Appellate Capacity. Kevin B. Weiss, of Weiss Legal Group, P.A., Maitland, for Petitioner, Florida Medical & Injury Center, Inc., and, Respondent, Preziosi West/East Chiropractic Clinic, P.A. Douglas H. Stein, of Seipp & Flick, LLP, Miami, for Respondent, Progressive Express Insurance Company and Petitioner, Progressive American Insurance Company, GRIFFIN, J. We have two second-tier certiorari petitions before us that present the same issue for decision. In one, the Petitioner is Florida Medical & Injury Center, Inc. and Case No. 5D09-889 Case No. 5D08-4005

Progressive Express Insurance Company is the Respondent. In the second case, the Petitioner is Progressive American Insurance Company and the Respondent is Preziosi West/East Chiropractic. Both Petitioners seek review of decisions of different circuit judges in the Eighteenth Judicial Circuit sitting on appeal in review of county court decisions involving personal injury protection ["PIP"] benefits. In each of the two

decisions, the judges reached opposite conclusions. This issue is one that has similarly generated conflicting opinions across the state by more than two dozen county and circuit courts,1 and is in need of resolution.

Pathway Wellness & Chiropractic Clinic, P.A. v. USAA Cas. Ins. Co., 16 Fla. Supp. 433b (Fla. 2d Cir. Ct. 2009); Lake Worth Emergency Chiropractic Ctr., P.A. v. Progressive Am. Ins. Co., 15 Fla. Supp. 1227a (Fla. 17th Cir. Ct. 2008); King v. United Auto. Ins. Co., 15 Fla. Supp. 430a (Fla. 11th Cir. Ct. 2008); United Auto. Ins. Co. v. Amador, 15 Fla. Supp. 320a (Fla. 11th Cir. Ct. 2008); Millennium Diagnostic Imaging Center, Inc. v. United Auto. Ins. Co., 15 Fla. Supp. 180a (Fla. 11th Cir. Ct. 2007); Preziosi West/East Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., 14 Fla. Supp. 789a (Fla. 18th Cir. Ct. 2007); North Fla. Med. Clinic v. Progressive Select Ins. Co., 14 Fla. Supp. 689b (Fla. Duval Cty. Ct. May 1, 2007; Janowski v. Progressive Select Ins. Co., 14 Fla. Supp. 505a (Fla. Duval Cty. Ct. Mar. 8, 2007); Martin v. Progressive Pro Auto Ins. Co., 14 Fla. Supp. 394a (Fla. Duval Cty. Ct. Feb. 2, 2007); Eric G. Friedman, D.C., P.A. v. United Auto. Ins. Co., 13 Fla. Supp. 825a (Fla. 11th Cir. Ct. 2006); NW Broward Orthopaedic Assocs., P.A. v. United Auto. Ins. Co., 13 Fla. Supp. 740a (Fla. 17th Cir. Ct. 2006); Weiss v. Progressive Express Ins. Co., 13 Fla. Supp. 395a (Fla. 18th Cir. Ct. 2006); Ft. Lauderdale Pain Center, Inc. v. Allstate Ins. Co., 13 Fla. Supp. 1006a (Fla. Dade Cty. Ct. July 17, 2006); Hialeah Diagnostic, Inc. v. United Auto. Ins. Co., No. 05-3692-CC-23(04) (Fla. Dade Cty. Ct. Oct. 20, 2006); Juan Garcia v. UAIC, No. 05-1671-SP-24 (Fla. Dade Cty. Ct. Sept. 12, 2006); Professional Med. Group, Inc. v. United Auto. Ins. Co., No. 05-015912-CC-25 (Fla. Dade Cty. Ct. July 11, 2006); Integra Health Servs., Inc. v. United Auto. Ins. Co., No. 05-5274-CC-23(02) (Fla. Dade Cty. Ct. May 11, 2006); Cereceda + Assocs., M.D., P.A. v. United Auto. Ins. Co., No. 05-05280-CC-23(03) (Fla. Dade Cty. Ct. Jan. 25, 2006); Polina-Nosel, M.D., P.A. v. United Auto. Ins. Co., 12 Fla. Supp. 1190 (Fla. Broward Cty. Ct. 2005); Asclepius Med. Inc. v. U.S. Sec. Ins. Co., 12 Fla. Supp. 778b (Fla. Dade Cty. Ct. May 27, 2005); Health Source Chiropractic, Inc. v. USAA Cas. Ins. Co., No. 08-10834CO-54 (Fla. 6th Cir. Ct. Oct. 12, 2009); Rainforest Rehab., Inc. v. United Auto. Ins. Co., No. 08-16272 COCE 50 (Fla. 17th Cir. Ct. May 8, 2009); Preziosi West/East Chiropractic Clinic, P.A. v. Progressive Express Ins. Co., No. 07-52-AP (Fla. 18th Cir. Ct. Jan. 15, 2009); United Auto. Ins. Co. v. Brown, No. 07-11616CACE (Fla. 17th Cir. Ct. July 24, 2008); Theodore P. Vlahos, Inc. v. USAA Cas. Ins. Co., No. 07-11984-SC-44 (Fla. 6th Cir. Ct. July 9, 2

1

The issue presented concerns a provision added by the Legislature in 2003 to Florida's personal injury protection statute. Section 627.736(5)(e)1., Florida Statutes (2005), provides: (5) CHARGES PERSONS.-FOR TREATMENT OF INJURED

(e)1. At the initial treatment or service provided, each physician, other licensed professional, clinic, or other medical institution providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person . . . to execute a disclosure and acknowledgment form, which reflects at a minimum that: a. The insured, or his or her guardian, must countersign the form attesting to the fact that the services set forth therein were actually rendered; b. The insured, or his or her guardian, has both the right and affirmative duty to confirm that the services were actually rendered; c. The insured, or his or her guardian, was not solicited by any person to seek any services from the medical provider; d. That the physician, other licensed professional, clinic, or other medical institution rendering services for which payment is being claimed explained the services to the insured or his or her guardian; and

2008); Preferred Medical & Rehab, Inc. v. Progressive Select Ins. Co., No. 07-27349 (Fla. Dade Cty. Ct. Aug. 20, 2008); Grossman v. United Auto. Ins. Co., No. 0713714(01) (Fla. Dade Cty. Ct. July 17, 2008); Lowery v. Progressive Select Ins. Co., No. 16-2007-SC-6332 (Fla. Duval Cty. Ct. July 8, 2008); Kendall South Med. Center v. United Auto. Ins. Co., No. 06-6662 SP 26(02) (Fla. 11th Cir. Ct. Oct. 23, 2007); Orthopaedic Clinic v. Progressive Auto Pro Ins. Co., No. 05-SC-2783 (Fla. Seminole Cty. Ct. May 7, 2007); Advance Health Servs., III, Inc. v. United Auto. Ins. Co., No. 053715 CC 26(03) (Fla. 11th Cir. Ct. Oct. 12, 2006); Clark v. Progressive Express Ins. Co., No. 16-2006-SC-004375 (Fla. Duval Cty. Ct. Dec. 20, 2006); Bayou Chiropractic Center, P.A. v. USAA, No. 2007-SC-007154 (Fla. Escambia Cty. Ct. Mar. 13, 2008); Bayou Chiropractic Center, P.A., v. USAA, No. 2007-SC-007155 (Fla. Escambia Cty. Ct. Mar. 13, 2008). 3

e. If the insured notifies the insurer in writing of a billing error, the insured may be entitled to a certain percentage of a reduction in the amounts paid by the insured's motor vehicle insurer. The apparent twin purposes of this "Disclosure and Acknowledgement Form" ["D&A form"] are to enhance patient understanding of their treatment and to discourage fraud by unscrupulous medical providers, especially the submission of claims for services not actually performed on the patient. Subsection (5)(e)1. sets forth certain minimum disclosures that the provider must make to the patient and requires the patient to countersign the form attesting that the services identified were actually provided. The (5)(e)1. requirement of a D&A form applies only to the initial visit. Thereafter, pursuant to 5(e)9., the provider has to

maintain a log of the services provided to the patient, which is counter-signed by the patient to signify that the services were, in fact, provided. Subsection (5)(e)5. requires the original D&A form to be furnished to the insurer. The most familiar provision of the PIP statute to the courts of Florida is subsection (4). This provision has been a key part of the PIP statute since it was first enacted. It provides that PIP benefits become overdue if the insurer has not paid them within thirty days after the insurer is furnished with "written notice of the fact of a covered loss and of the amount of same."

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