11 Fla. L. Weekly Supp. 1098b
Insurance — Personal injury protection — Standing — Assignment — Validity — Document irrevocably assigning rights under policy is valid assignment — Claim form — Countersignature — Insured is not required to countersign HCFA forms as condition precedent to insurer paying assigned claim — HCFA form constitutes valid notice of loss — Coverage — Medical expenses — Magnetic resonance imaging — Statute does not invalidate MRI bill where amount of charge exceeds MRI fee schedule, but payment of PIP benefits for bill is limited to fee schedule amount — Medical provider is entitled to summary disposition where unrefuted evidence indicates that insured was involved in automobile accident, insured was covered by policy which included PIP benefits at time of accident, MRI was reasonable and necessary diagnostic test related to injuries sustained by insured in accident, bill for MRI was timely submitted to insurer within 30 days of treatment, and insurer failed to make any payment of PIP benefits in response to MRI bill — Reasonable, related, and necessary treatment — Evidence — Affidavit of insurer’s medical expert is insufficient to counter provider’s evidence of reasonableness, relatedness, and necessity of treatment, where expert is not licensed under same chapter as treating chiropractor, affidavit does not indicate that expert meets requirement of being in active practice unless physically disabled, affidavit was not filed until day of summary disposition hearing, and affidavit alters insurer’s previous position that only basis for denial of MRI bill was excessiveness of bill
A-1 MOBILE MRI, INC., (Rocio Maciques) (Belinda Marzan), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13659 COCE (49) (Consolidated with Case No. 03-13781 COCE (49)). July 9, 2004. Kathleen D. Ireland, Judge. Counsel: Robert G. Nichols, Nichols Williams, P.A., for Plaintiff. Garrett T. Zediker, Office of the General Counsel, United Automobile Insurance Company, for Defendant.
[Editor’s note: See also 11 Fla. L. Weekly Supp. 1116e.]
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION & FINAL JUDGMENT
THIS CAUSE came before this Court upon the Plaintiff’s Motion for Summary Disposition filed on March 31, 2004. The Court finds that the motion was properly noticed, and all parties were present for the hearing on the matter. The Court has carefully considered the motions and pleadings filed by the parties as well as the argument by the attorneys during the hearing. Based upon the above, the Court hereby makes the following findings of fact:
FINDINGS OF FACT
A-1 Mobile MRI, Inc. (hereinafter “the Plaintiff”) has filed a PIP suit alleging that PIP benefits, based upon a medical service that Plaintiff rendered to the insured/claimant, Rocio Maciques, (hereinafter, “the insured”) were improperly withheld by United Automobile Insurance Company (hereinafter “the Defendant”). The insured sought medical treatment from the Plaintiff as a result of injuries sustained in an automobile accident occurring on May 30, 2002. Specifically, the Plaintiff provided a reasonable, related and necessary cervical MRI to the insured based upon a prescription from Dr. Glenn Quintana, a State licensed chiropractor. The insured’s bodily injuries were covered by an automobile insurance policy with Defendant, which provided her Personal Injury Protection (“PIP”) benefits. Prior to receiving said MRI, the insured executed an Assignment of Rights and Benefits with respect to PIP benefits due from the Defendant.
Plaintiff sent Defendant a copy of the signed assignment of benefits, along with a properly completed HCFA/CMS 1500 form and supporting documentation. In response, Defendant refused to pay any benefits to Plaintiff.
ISSUES
The Plaintiff’s Motion for Summary Disposition presented the following issues for this Court’s determination. Each issue was fully argued by the attorneys during the hearing.
I. WHETHER THE ASSIGNMENT OF RIGHTS AND BENEFITS ATTACHED TO THE COMPLAINT AS PLAINTIFF’S EXHIBIT A IS LEGALLY VALID?
II. WHETHER THE FLORIDA PIP LAW REQUIRES HCFA FORMS TO BE COUNTERSIGNED BY AN INSURED WHEN THE MEDICAL PROVIDER HAS ACCEPTED AN ASSIGNMENT OF RIGHTS AND BENEFITS?
III. WHETHER THE AMOUNT OF PIP BENEFITS FOR THE MRI IN THIS CASE ARE PAYABLE ACCORDING TO A PRESET MRI FEE SCHEDULE?
IV. WHETHER THE HCFA BILL CONSTITUTES VALID NOTICE OF A CLAIM?
V. WHETHER Belinda Marzan WAS INVOLVED IN AN AUTOMOBILE ACCIDENT ON MAY 30, 2002?
VI. WHETHER Belinda Marzan WAS COVERED BY A VALID POLICY OF INSURANCE ISSUED BY DEFENDANT AND IN EFFECT ON THE DATE OF LOSS?
VII. WHETHER THE MRI PERFORMED ON Belinda Marzan BY PLAINTIFF ON OCTOBER 21, 2002, WAS REASONABLE, NECESSARY AND RELATED TO THE AUTOMOBILE ACCIDENT OF MAY 30, 2002?
VIII. WHETHER PLAINTIFF TIMELY BILLED THE SERVICES AT ISSUE AND WHETHER DEFENDANT FAILED TO TIMELY PAY THE BILL AT ISSUE?
In addition, the Plaintiff attached the following exhibits to said motion:
Exhibit A: Affidavit of Angel Soto (with Exhibits attached);
Exhibit B: Plaintiff’s Request for Admissions;
Exhibit C: Plaintiff s Interrogatories and Defendant’s Sworn Answers
Exhibit D: Plaintiff’s Request for Production and Defendant’s Response
Exhibit E: Affidavit of Dr. Glenn Quintana (with Exhibits attached)
Plaintiff also filed in the court file a copy of the Examination Under Oath of Belinda Marzan, who was a passenger in the car driven by Rocio Maciques, which was involved in the accident in this case.
RULINGS
Issue I: WHETHER THE ASSIGNMENT OF RIGHTS ANDBENEFITS IS LEGALLY VALID?
The Court finds that the Assignment of Rights and Benefits, which was attached to the complaint, is legally valid and that notice of the assignment was provided to the Defendant in a timely manner based upon the following:
1. The Affidavit of Angel Soto (Exhibit A) identifies and authenticates the attached assignment of rights and benefits, and confirms the intent of the parties to transfer the rights listed therein;
2. The Defendant’s Response to Interrogatory 18 (Exhibit C) confirms that the Defendant had received a copy of the assignment of benefits;
3. There is no indication or allegation that the assignment was ever revoked or superceded;
4. The Court finds that the language contained in the attached assignment of rights and benefits is sufficient to create a valid transfer of the rights and benefits listed therein. Specifically, the document is entitled “ASSIGNMENT OF BENEFITS”, and specifically states in bold, among other things, that:
“I am placing my insurance company on notice that this is a direct assignment of my benefits pursuant to Florida law. As the insured or beneficiary of said insurance policy, I am irrevocably assigning whatever rights I have under my insurance policy and under Florida law to this health care provider.”
5. By failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 27: The exhibit attached to the complaint as Exhibit A is a valid assignment of benefits between the Plaintiff and the Claimant named in this case.
RFA 28: Plaintiff provided Defendant with notice of acceptance of an assignment of benefits at the time the initial bill was provided to Defendant.
Issue II: WHETHER THE FLORIDA PIP LAW REQUIRES HCFAFORMS TO BE COUNTERSIGNED BY AN INSURED WHEN THEMEDICAL PROVIDER HAS ALREADY ACCEPTED ANASSIGNMENT OF RIGHTS AND BENEFITS?
F.S. 627.736(5)(a) and (d) does not require the HICF forms to be countersigned when the medical provider has accepted an assignment of benefits because an assignment of benefits transfers all rights and interest to the assignee, thus nullifying the need for a countersignature. In addition, the Court relies upon the following cases:
USA Diagnostics v. Star Casualty, 855 So.2d 251 (Fla. 4th DCA 2003);
Hialeah Medical Associates, Inc. (Manuel Martinez) v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 738b (11th Jud. Cir., Appellate, 2002);
Total Health Care of Florida, Inc. (Oscar Blas) v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 659a (11th Judicial Circuit, Appellate, 2002);
United Auto Ins. Co. (Richard Navas) v. Medical Specialists, 11Fla. L. Weekly Supp. 508a (9th Judicial Circuit, Appellate, 2004);
Dr. Jason Marucci (Johanna Poveda) v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 871b (17th Jud. Cir., Jg. Kathleen Ireland, 2002);
In addition, by failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 18. Defendant has been furnished with written notice of the fact of a covered loss with regard to the portions of Plaintiff’s PIP claim which are the subject of dispute herein.
RFA 24. Defendant was notified of the circumstances surrounding the injuries sustained by Patient by means of correspondence and/or the “No Fault” application for benefits claim form submitted to Defendant.
III: WHETHER THE AMOUNT OF PIP BENEFITS FOR THEMRI IN THIS CASE ARE PAYABLE ACCORDING TO APRESET MRI FEE SCHEDULE?
F.S. 627.736(5)(b)(5) does not invalidate an MRI bill simply because the amount charged exceeds the amount of the applicable MRI Fee Schedule. Instead, the payment of PIP benefits for an MRI bill is limited to the amount of the fee schedule.
Defendant has argued that if an MRI bill itself does not list an amount at or lower than the amount listed on the statutory fee schedule, then the entire bill is invalid, and the insurance company is thereby relieved of liability on the grounds that the bill does not constitute proper notice of a claim. The argument is incorrect.
The Court notes that other parts of the PIP Statute which are similarly worded have not been subject to this strict interpretation. For example, FS 627.736(5)(a) requires that:
“Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered. . .” (emphasis added)
Under the Defendant’s interpretation of this language, any charge which exceeded a reasonable amount would be rendered invalid, thus relieving the insurer of liability. The correct interpretation is, that the insurer is liable only for the “reasonable amount”, just as the insurer is liable for only the reduced fee schedule amount for an MRI.
Similar examples can be found with respect to the identical workers compensation fee schedule. Workers compensation bills which exceed the amount on the fee schedule are not rendered invalid, but are simply payable at the reduced amount listed on the fee schedule. Thus, because the PIP and workers compensation fee schedules are similarly worded, they should be administered in like fashion.
Finally, requiring MRI facilities to bill the exact amount of the fee schedule would force them to accept a reduce fee from collateral sources as well.
The applicable MRI Fee Schedule for the bill in this case is: CPT 73221-TC is payable at a rate of $976.00 for services rendered in Dade County, Florida.
In addition, by failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 16: All medical expenses submitted by Plaintiff to Defendant which have not yet been paid were “reasonable,” “related” and “necessary.”
RFA 18. Defendant has been furnished with written notice of the fact of a covered loss with regard to the portions of Plaintiff’s PIP claim which are the subject of dispute herein.
RFA 24. Defendant was notified of the circumstances surrounding the injuries sustained by Patient by means of correspondence and/or the “No Fault” application for benefits claim form submitted to Defendant.
IV: WHETHER THE HCFA (ATTACHED TO EXH. A)CONSTITUTES VALID NOTICE OF A CLAIM?
The HICF in this case is found to be a valid notice of a covered loss under FS 627.736 based upon the following:
1. Under FS 627.736(5)(e):
All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. All billings for such services shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. 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.
In this case, the HCFA attached to the Affidavit of Angel Soto (Exhibit A)complies with all of the above noted requirements, and therefore constitutes valid notice of the amount of covered loss.
2. The Defendant admitted he received the HICF in a timely manner in their sworn response to Plaintiff’s Interrogatory number 2 and 18 (Exhibit C).
3. Plaintiff’s Interrogatory 23 asks:
Please list all basis in fact and/or law upon which you are denying the Plaintiff’s claim against your company of the payment of PIP benefits.
Defendant’s sworn response states:
Defendant states that all medical bills submitted are excessive. Defendant furthermore states that counsel will address additional defenses at during the anticipated meeting of the week of 10/27/03.
Thus, Defendant said nothing about the HCFA being invalid.
4. By f ailing to file timely responses to the Plaintiff’s Requests f or Admissions, the Defendant has admitted the following:
RFA 18. Defendant has been furnished with written notice of the fact of a covered loss with regard to the portions of Plaintiff’s PIP claim which are the subject of dispute herein.
RFA 24. Defendant was notified of the circumstances surrounding the injuries sustained by Patient by means of correspondence and/or the “No Fault” application for benefits claim form submitted to Defendant.
ISSUE V: WHETHER THE INSURED, ROCIO MACIQUES, WASINVOLVED IN AN AUTOMOBILE ACCIDENT ON MAY 30, 2002?
The Court relies upon the following evidence that the insured was involved in an automobile accident on May 30, 2002:
1. Dr. Glenn Quintana’s affidavit (Exhibit E)states that he was the treating chiropractic physician in this case, and that the insured, Rocio Maciques, had advised him that she was injured in an automobile accident on 5/30/02. The affidavit confirms that the statement was made to the doctor in response to the doctor’s questions to Rocio Maciques regarding her diagnosis and treatment, and that the information was needed by the doctor to properly diagnose and treat his patient. Therefore, the statement is admissible hearsay under Florida Statute 90.803(4) as a statement made for purposes of medical treatment or diagnosis.
2. Plaintiff’s Interrogatory 23 asks:
Please list all basis in fact and/or law upon which you are denying the Plaintiff’s claim against your company of the payment of PIP benefits.
Defendant’s sworn response states:
Defendant states that all medical bills submitted are excessive. Defendant furthermore states that counsel will address additional defenses at during the anticipated meeting of the week of 10/27/03.
Thus, Defendant has stated under oath that the only reason that United Auto did not pay benefits to plaintiff is that the bill is “excessive”; no allegation is made that the accident never occurred.
3. During an Examination Under Oath, conducted by United Auto, which is on file in this case, the insured’s sister, Belinda Marzan, confirmed that she and Rocio Maciques were involved in the subject motor vehicle accident on May 30, 2002.
4. By failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 16: “All medical expenses submitted by Plaintiff to Defendant which have not yet been paid were “reasonable,” “related”and “necessary.” (Emphasis added).
RFA 6: “Defendant has no medical report with regard to any treatment for which benefits are sought by Plaintiff specifically stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 7: “Defendant has not provided Plaintiff with any reports stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 8: “Defendant failed to pay Plaintiff’s PIP claim without having reasonable proof to establish that Defendant was not responsible for payment” (emphasis added.);
ISSUE VI: WHETHER THE INSURED, ROCIO MACIQUES, WASCOVERED BY A VALID POLICY OF INSURANCE ISSUED BYDEFENDANT AND IN EFFECT ON THE DATE OF LOSS?
The court finds that at the time of the motor vehicle accident in this case, the insured was covered by a policy of insurance issued by the Defendant which provided PIP benefits for the subject injuries, based upon the following:
1. In response to Plaintiff’s Interrogatory 1 (Exhibit E), which asks whether the Defendant insured the Plaintiff, the Defendant stated under oath:
“Defendant insured Maude Duncan-Richards. The policy was issued by Elite Insurance Group. The policy period was between April 9, 2002 to, 2003. (Information sought will be found in the declaration Page submitted in Defendant’s response to Plaintiff’s First Request to Produce.)”
2. In response to Plaintiff’s Interrogatory 23(Exhibit E), Defendant stated under oath that the only reason that the bills were not paid in this case was because:“Defendant states that all medical bills submitted are excessive. Defendant furthermore states that additional defenses will be addressed by counsel.”Thus,no indication is given that the denial of benefits was based in any way upon a lack of coverage.
3. In Defendant’s Response to Plaintiff’s Request for Production number 17 (Exhibit D), which requests copies of“Any and all Automobile Cancellation Notices for Non-payment that were sent to the insured at any time”,the Defendant responded,“None”. Similarly, in Defendant’s Responses to Plaintiff’s 2nd Request for Production number 6 (Id.), which requests “A certified copy of any cancellation notices related to the insurance policy for which benefits were demanded upon in this action”,the Defendant again responded,“None.”Defendant also provided in discovery a copy of the policy in effect at the time of the accident.
4. By failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 3. Defendant insured Rocio Maciques which covers the Patient under an automobile insurance policy which provides PIP benefits for the subject accident.
RFA 4. The above-described automobile policy issued by Defendant was in full force and effect for the subject accident and provides coverage for PIP benefits for bodily injuries sustained by the Patient in the subject accident.
RFA 10. That the Defendant accepted late payments of the premiums from this insured prior to the accident in issue in this lawsuit.
RFA 11. That Defendant accepted late payments of the premiums from this insured after to the accident in issue in this lawsuit.
RFA 19. This automobile insurance policy issued by Defendant, which covered the Patient’s medical bills, was in effect on the date of the accident described in the subject Complaint.
RFA 20. The premiums due and owing on this automobile insurance policy were not delinquent at the time of the subject automobile accident.
RFA 21. This said policy is an automobile insurance policy and, by its terms, Defendant agreed to extend the protection afforded by the policy to the damages caused to the insurance.
RFA 22. This said policy provides personal injury protection insurance coverage for the medical expenses and lost wages incurred by the Patient.
RFA 23. The said personal injury protection insurance coverage provisions of the policy were in effect on the date of the subject accident.
ISSUE VII: WHETHER THE MRI PERFORMED ON THE INSURED,ROCIO MACIQUES, BY PLAINTIFF ON OCTOBER 21, 2002, WASREASONABLE, NECESSARY AND RELATED TO THEAUTOMOBILE ACCIDENT OF MAY 30, 2002?
Plaintiff has provided admissible proof that the MRl at issue took place based upon a valid prescription from a licensed physician (See, Exhibit A, Affidavit of Angel Soto and Exhibit E, the Affidavit of Dr. Glenn Quintana). Plaintiff has also provided admissible proof that the MRI provided by Plaintiff to Rocio Maciques on 10/21/02, was reasonable necessary and related to the automobile accident of 5/30/02, as follows.
1. In Exhibit E, the Affidavit of Dr. Glenn Quintana, the treating chiropractic physician who wrote the MRI prescription in this case, the doctor opines that, within a reasonable degree of medical probability, the MRI in this case was reasonable and necessary to diagnose and treat injuries sustained by Rocio Maciques, and was related to the motor vehicle accident on 6/5/02. The affidavit further confirmed that MRI revealed Rocio Maciques had suffered from, among other things, a partially torn rotator cuff.
2. In Exhibit A, Angel Soto, the President of A-1 Mobile MRI, swears that the MRI was conducted pursuant to a lawful and proper MRI prescription by Dr. Glenn Quintana, which was attached as an exhibit to the affidavit. Also attached to the affidavit is the MRI interpretation, which was obtained by A-1 Mobile MRI, which revealed that Ms. Marzan suffered a“partial tear of the rotator cuff . . . and a small amount of fluid in the glenohumeral bursa which may indicate mild inflammatory process or response to trauma.”
3. During the Examination Under Oath conducted by Defendant, Belinda Marzan testified that she had injured her back in the subject motor vehicle accident, and that her sister, Rocio Maciques, was the driver of that same car.
4. By failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 16: “All medical expenses submitted by Plaintiff to Defendant which have not yet been paid were “reasonable,” “related” and “necessary.”
RFA 6: “Defendant has no medical report with regard to any treatment for which benefits are sought by Plaintiff specifically stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 7: “Defendant has not provided Plaintiff with any reports stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 8: “Defendant failed to pay Plaintiff’s PIP claim without having reasonable proof to establish that Defendant was not responsible for payment” (emphasis added.);
Based upon the above evidence, the Plaintiff has met their burden of proof regarding this issue. The burden then shifted to the Defendant to provide admissible evidence to counter the Plaintiff’s evidence. To this end, the Defendant filed, on the day of the summary disposition hearing, a copy of an affidavit from Dr. Peter J. Millheiser, M.D. The affidavit is insufficient to satisfy the Defendant’s burden of proof for the following reasons:
First, Defendant’s affidavit is not from a chiropractic physician. The affidavit specifically states that Dr. Millheiser is a medical doctor; nowhere does indicate that he is a licensed chiropractic physician. Dr. Glenn Quintana’s affidavit (Exhibit E)states that he was both treating physician and the physician who wrote the prescription upon which the MRI in this case is based. No where in the record does it indicate that the insured ever received any treatment or services from a medical physician. Thus, it is Dr. Quintana’s chiropractic treatment of the insured that is at issue in this case. Dr. Quintana is a chiropractic physician licensed under Chapter 460, while Dr. Millheiser is a medical doctor licensed under Chapter 458.
Florida Statute 627.736(7)(a), which regulates the denial of PIP benefits based upon an IME or Peer Review, states in pertinent part:
Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians . . . . An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. The physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program.
Therefore, because the affidavit of Dr. Millheiser is not “a valid report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary”, it is insufficient to support the denial of benefits in this case. In Allstate v. Garrett, 550/22 (Fla. 2d DCA 1989), the Court ruled that,“The apparent intent of the amendment to section 627. 736(7)(a) is to prevent an insurer from using reports of a medical doctor as a basis for termination of payments to a chiropractor or osteopath and vise-versa.”Thus, the affidavit fails to satisfy the Defendant’s shifted burden of proof regarding the issue of whether the MRI was reasonable, related and necessary.
Second, FS 627.736(7)(a) specifically requires that“The physician preparing the report must be in active practice, unless the physician is physically disabled.”Nowhere in Dr. Millheiser’s affidavit does he satisfy this requirement, and therefore, the affidavit does not the requirements under the statute.
Third, the affidavit was not filed until the day of the summary disposition hearing, even though the case had been scheduled for hearing for several months. The affidavit is therefore untimely under FRCP 1.510(c).
Fourth, it is well settled that a party cannot alter a previous position to defeat summary judgment. In Home Loan v. Sloan, 240/526 (Fla. 2d DCA 1970), the Court ruled that: “A party opposing summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat summary judgment.” In this case, Dr. Millheiser’s affidavit directly conflicts with the following:
1. By failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 16: “All medical expenses submitted by Plaintiff to Defendant which have not yet been paid were “reasonable,” “related” and “necessary.”
RFA 6: “Defendant has no medical report with regard to any treatment for which benefits are sought by Plaintiff specifically stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 7: “Defendant has not provided Plaintiff with any reports stating that the treatment for which Plaintiff seeks PIP benefits was “not reasonable,” “not related” or “not necessary.”
RFA 8: “Defendant failed to pay Plaintiff’s PIP claim without having reasonable proof to establish that Defendant was not responsible for payment” (emphasis added.);
The Court finds that the Plaintiff has suffered prejudice as a result of the Defendant’s failure to provide proper timely responses to the Plaintiff’s Requests for Admissions, as well as the Defendant’s failure to properly schedule a hearing seeking relief from said admissions in a timely fashion.
2. Plaintiff’s Interrogatory number 23 asks:
Please list all basis in fact and/or law upon which you are denying the Plaintiff’s claim against your company of the payment of PIP benefits.
Defendant’s sworn response states:
Defendant states that all medical bills submitted are excessive. Defendant furthermore states that additional defenses will be addressed by counsel. (Emphasis added)
Thus, at a time when the Defendant was in possession of Dr. Millheiser’s medical report regarding the MRI, the Defendant’s sworn response states that the only reason for the denial of benefits in this case was that the bill itself was excessive. The report is not relied upon.
ISSUE VIII: WHETHER PLAINTIFF TIMELY BILLED THESERVICES AT ISSUE AND WHETHER DEFENDANT FAILEDTO TIMELY PAY THE BILL AT ISSUE?
This Court finds the bill at issue in this case to have been received timely by the Defendant (i.e., within 30 days of the MRI) based upon the following:
1. Exhibit A, Affidavit of Angel Soto, states under oath that the 10/21/02 MRI bill was submitted timely to United Auto;
2. Defendant’s Response to Interrogatory number 2 and 18(Exhibit E)states under oath that the bill for the 10/21/02 MRI was received by the Defendant on 11/6/02, which is well within the 30-day limit.
3. Plaintiff’s Interrogatory 23 (Exhibit E) asks:
Please list all basis in fact and/or law upon which you are denying the Plaintiff’s claim against your company of the payment of PIP benefits.
Defendant’s sworn response states:
Defendant states that all medical bills submitted are excessive. Defendant furthermore states that additional defenses will be addressed by counsel.
Thus, Defendant stated nothing about the MRI bill being untimely.
4. In addition, by failing to file timely responses to the Plaintiff’s Requests for Admissions, the Defendant has admitted the following:
RFA 18. Defendant has been furnished with written notice of the fact of a covered loss with regard to the portions of Plaintiff’s PIP claim which are the subject of dispute herein.
RFA 24. Defendant was notified of the circumstances surrounding the injuries sustained by Patient by means of correspondence and/or the “No Fault” application for benefits claim form submitted to Defendant.
THEREFORE, it is ORDERED AND ADJUDGED that the Court hereby grants the Plaintiff’s Motion for Summary Disposition, and enters Final Judgment for the Plaintiff in the amount of $976.00. The Court further retains jurisdiction regarding the issue of reasonable attorneys fees and costs for the Plaintiff. Defendant shall take nothing and go hence without day.
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