11 Fla. L. Weekly Supp. 665b
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Partial summary judgment is granted in favor of provider/assignee on issue of reasonableness, relatedness, and necessity of treatment rendered and billed prior to independent medical examination of insured where treating physician’s affidavit supports necessity of treatment and affidavit of provider’s billing expert attests that charges are reasonable within community — Insurer’s ore tenus motion to continue hearing on motion is denied where insurer had ample opportunity to prepare for or move to continue hearing in four months since service of motion — Counter-affidavit filed day before hearing is untimely — Affirmative defenses — Striking — Conclusory affirmative defenses are stricken
ALL COUNTY MEDICAL CENTER, INC. a/a/o Irina Davydova, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-08036 COCE 53. May 19, 2004. William W. Herring, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff. Laura C. Douglas, Stern & Montana, LLP, Boca Raton, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGEMENT ON ISSUES OF REASONABLE, RELATED AND MEDICALLY NECESSARY AND PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
THIS MATTER, having come before the Court on April 29, 2004 on Plaintiff’s Motion for Partial Summary Judgment on Issues of Reasonable, Related and Medically Necessary and Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses and the Court having reviewed the motions, having heard argument of counsel and being otherwise advised in the premises,
It is ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment on the Issues of Reasonable, Related and Medically Necessary is granted for all treatment rendered to Irina Davydova from December 19, 2002 through March 14, 2003. The Court finds there is no material issue as to the medical necessity for any treatment prior to March 14, 2003 supported by all of the evidence before the Court, including the affidavit of the insured’s treating physician, Janet Goldstein, D.C. The Court reviewed the affidavit of Dr. Goldstein and finds it to be legally sufficient. Dr. Goldstein’s affidavit attests she was the treating physician involved in the care andtreatment of Irina Davydova who was involved in a motor vehicle accident on December 17, 2002; that Irina Davydova received treatment from Plaintiff from December 19, 2002 through April 30, 2003; that Dr. Goldstein is familiar with the medical protocols as to how and when it is reasonable and necessary to treat a patient involved in a motor vehicle accident; and that based on the patient’s subjective complaints and her objective findings, within a reasonable degree of medical certainty and probability, the care and treatment rendered to Irina Davydova was reasonable, related, medically necessary and related to the motor vehicle accident of December 17, 2002. The Court notes that Plaintiff is only moving for partial summary judgment for those bills received byDefendant prior to the Independent Medical Exam (“IME”) of Irina Davydova conducted on April 26, 2003. Pursuant to the Explanations of Benefits produced by Defendant, allof the billsup to and including the March 14, 2003 bill were received by Defendant prior to the IME on April 26, 2003.
The Court reviewed the affidavit of Plaintiff’s billing expert, Mr. Shawn Carmichael, and finds this affidavit to be legally sufficient. Mr. Carmichael’s affidavit states he is the President of Plaintiff’s billing company, the person with the most knowledge as to Plaintiff’s billing and a certified expert in billing. Mr. Carmichael’s affidavit attests thatPlaintiff’s charges are reasonable within Plaintiff’s community (usual and customary).
The Court denies Defendant’s ore tenus motion to continue Plaintiff’s motion for partial summary judgment made at today’s hearing. The Court finds that the Defendant had an ample opportunity to move to continue this hearing. Plaintiff’s motion was filed with the Court and served on Defendant four months ago and Defendant made no previous motion tocontinue. Therefore, the Defendant has waived its right toargue that it could not prepare for this hearing and could not take the depositions that were necessary to defend against Plaintiff’s motion.
The Court finds that the affidavit of Defendant’s Litigation Adjuster, David Bierman filed by Defendant the day before the hearing to be untimely and in violation of the Florida Rules of Civil Procedure. The Florida Rules of Civil Procedure are clear as to the time frame by which a counter-affidavit is to be served. The Defendant had ample opportunity to file a counter-affidavit in the four months since Plaintiff’s motion and supporting affidavits were filed.
In addition, the Court finds that despite having had ample opportunity, the Defendant did not move to compel any discovery or depositions in this case. For all of the reasons stated herein and because a proper paper case has been made on reasonableness, necessity and relatedness, Plaintiff’s motion for partial summary judgment on these issues is granted.
As to Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses,
It is ORDERED and ADJUDGED that Plaintiff’s motion to strike is granted as to Defendant’s first, third, fourth, fifth, sixth, seventh, tenth and eleventh affirmative defenses. The Court finds these affirmative defenses to be legally insufficient as they are conclusory and are not pled with the specificity and particularity required by law. The Defendant shall have thirty (30) days from the date of this hearing to amend its affirmative defenses. Since the Court previously granted partial summary judgment on the issue of medical necessity to Plaintiff, Defendant’s eighth affirmative defense is stricken with prejudice. Lastly, the Defendant has withdrawn its second affirmative defense.
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