10 Fla. L. Weekly Supp. 227b
Insurance — Med Pay — Personal injury protection — Med Pay insurance claims are governed by provisions of insurance policy affording coverage, not statute regulating mandatory PIP insurance — Error to grant summary judgment finding insurer not liable for claim for Med Pay benefits due to medical providers’ failure to comply with statutory requirement to submit bills within 30 days of treatment where Med Pay policy requires only that bills be reasonable medical expenses for bodily injury for services furnished within three years of accident
AURORA GONZALEZ, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-075 AP. L.T. Case No. 01-0401 SP 25. February 25, 2003. An Appeal from the County Court for Miami-Dade County. Counsel: Adolfo A. Podrecca, Fazio, Dawson, Disalvo, Cannon, Abers, et al., for Appellant. Elizabeth K. Russo, Russo Appellate Firm, for Appellee.
(Before GISELA CARDONNE ELY, ELLEN L. LEESFIELD, and CINDY S. LEDERMAN, JJ.)
(ELLEN L. LEESFIELD, J.) This is an appeal from a Summary Judgment granted in favor of the Appellee, State Farm Mutual Automobile Insurance Company. The lower court held that, because the medical providers failed to comply with their obligations under Florida Statute section 627.736(5)(c), the Appellant and the Appellee were not liable for the medical bills.
The standard of appellate review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000).
This court finds that Florida Statute section 627.736 which regulates mandatory Personal Injury Protection does not apply to Med Pay claims. Personal Injury Protection is mandated by Florida Statute section 627.736 which is titled “Required personal injury protection benefits; exclusions; priority; claims”. Optional Med Pay insurance exists only by virtue of a contractual agreement and is governed by the provisions of the insurance policy affording such coverage.
In this case, the Appellant submitted a claim requesting payment of $5,000 in Med Pay benefits. Nowhere in the insurance contract offered by the Appellee and agreed to by the Appellant is there a provision requiring bills to be submitted within 30 days of treatment or service. In fact, the Med Pay portion of the policy only requires that the bills be for “reasonable medical expenses for bodily injury for services furnished within three years of the date of the accident.” Therefore, the failure to submit bills within 30 days of treatment or service does not discharge the Appellee’s obligation to pay Med Pay benefits to the Appellant.
Accordingly, we REVERSE and REMAND for further proceedings consistent herewith.
As to Appellant’s Motion for Attorney’s Fees, it is granted conditioned upon the insured ultimately prevailing with a recovery on the policy. Tench v. American Reliance Ins. Co., 671 So. 2d 801, 802 (Fla. 3d DCA 1996). (CARDONNE and LEDERMAN, JJ. concur.)
* * *
