10 Fla. L. Weekly Supp. 1024a
Insurance — Personal injury protection — Reasonable, related, and necessary treatment — Directed verdict is entered in favor of medical provider where provider’s expert testified credibly that treatments received by insured were reasonable, related, and necessary and insurer failed to either substantially discredit provider’s expert or come forth with own expert in rebuttal
ACTIVE SPINE CENTERS, L.L.C., a/a/o Mahalia Rodriguez, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corp., Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 03-00407-SP-26. Section No. 02. October 21, 2003. Lawrence D. King, Judge. Counsel: Neil M. Gonzalez, Bernstein and Maryanoff, P.A., Miami, for Plaintiff. Dagmar Llaudy and Lizzette De La Rosa, Office of the General Counsel, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONS FOR DIRECTED VERDICT AND ENTERING FINAL JUDGMENT FOR PLAINTIFF
THIS CAUSE came before the Court for trial on September 20, 2003. After the close of the evidence, and upon Plaintiff’s Motion(s) for Directed Verdict pursuant to Fla. R. Civ. P. 1.480, and the Court being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Directed Verdict in favor of Plaintiff is hereby GRANTED.
Defendant failed to either substantially discredit Plaintiff’s medical expert, or come forth with their own expert in rebuttal to Plaintiff’s expert. See, Cecile Resort, Ltd. v. Hokanson, 724 So. 2d 446 (Fla. 4th DCA 1999) (A directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict for the non-moving party). Indeed, Plaintiff’s medical expert (chiropractor) testified credibly that the treatments received by Mahalia Rodriguez were reasonable, related and necessary. A jury is not free to reject uncontroverted medical testimony indicating a permanent injury. Vega v. Travelers Indemnity Company, 527 So. 2d 73 (Fla. 3d DCA 1988). When the Plaintiff presents expert testimony to support a claim for permanent injury, the defense, in order to survive a Motion for Directed Verdict, must come forward with countervailing evidence or severely impeach the proponent’s expert. Williamson v. Superior Insurance Company, 746 So. 2d 483, 485 (Fla. 2d DCA 1999); Holmes v. State Farm Mutual Automobile Insurance Company, 624 So. 2d 824 (Fla. 2d DCA 1993). Plaintiff having met its burden of proof under the case of Derius v. Allstate Indemnity Company, 723 So. 2d 271 (Fla. 4th DCA 1998), the burden then shifts to the Defendant. At trial, Defendant only called one witness in rebuttal, claims adjuster Jeanette Alonzo. Her testimony was insufficient to establish facts warranting the submission of this case for jury consideration.
During the oral motions for directed verdict, Defendant cited United Automobile Insurance Company v. Marisol Rodriguez, 808 So. 2d 82 (Fla. 2001) in support of is opposition to entry of directed verdict by this Court in favor of Plaintiff. Respectfully, the arguments of defense counsel are misplaced. The concurring opinion of Justice Pariente in the Marisol Rodriguez case at p. 89 and p. 90 (footnote), discusses in great detail the distinction between Fla. Stat. Sec. 627.736(7)(a) and related statutory enactments concerning the procedural aspects to a challenge by the insurer to reasonableness, relatedness, or necessity of the services or treatment rendered.
In the case sub judice United Automobile Insurance Company failed to comply with the statutory mandates of Fla. Stat. 627.736(7)(a), and therefore cannot lawfully withhold payment for the medical benefits due under the PIP automobile insurance policy affording coverage to its insured Mahalia Rodriguez. At trial, neither the IME report nor the testimony of any medical expert was presented by Defendant, and therefore directed verdicts in favor of Plaintiff are appropriate. Moreover, the case of United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) is binding upon this Court, and is still controlling in its statutory interpretation. The Court finds that contrary to defense counsel’s argument, Viles was not “overruled” by the decision of the Florida Supreme Court in United Automobile Insurance Company v. Marisol Rodriguez, 808 So. 2d 82 (Fla. 2001). This is not the first time United Automobile Insurance Company and its counsel have made such an argument before the trial courts of this jurisdiction.1
IT IS FURTHER ORDERED that Plaintiff’s Motions for Directed Verdict as to the Affirmative Defenses raised by Defendant regarding late notice and fraud are GRANTED. There was no credible evidence presented by Defendant at trial in support of these alleged defenses.
WHEREFORE, having entered directed verdicts in favor of Plaintiff as to all matters, the Court hereby enters final judgment in favor of Plaintiff and against Defendant in the amount of $7,691.20, which is the amount proven to be the reasonable, related and necessary medical services rendered after application of the policy deductible. The Court reserves jurisdiction to award reasonable attorney fees and costs.
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1In a strikingly similar case, Judge Richard J. Suarez was called upon to consider almost identical issues presented by way of directed verdict motions, and the Court’s analysis was concise, well reasoned, and of great assistance in the drafting of this opinion. The Court has relied upon and paraphrased the legal analysis of Judge Suarez with his permission in rendering this opinion as it pertains to the interplay of the statutory requirements placed upon the insurer prior to a denial of payment for alleged fraud, or upon other contractual basis. (See Optima Health & Rehab (Ricardo Abreu) v. United Automobile Insurance Company, Case No. 02-1093 SP 26 (04) opinion filed October 2003) (granting directed verdicts in favor of Plaintiff, Optima).
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