11 Fla. L. Weekly Supp. 918a
Insurance — Personal injury protection — Affirmative defenses — Fraud defense is stricken where insurer has not pled fraud with particularity and has failed to prove fraud — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Where insurer failed to substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonableness, relatedness or necessity of medical expenses, summary judgment is granted in favor of medical provider
CICERO ORTHO-MED CENTER, INC., assignee of Felicita Martinez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-14457 SP 25(2). August 2, 2004 , nunc pro tunc to June 21, 2004. Teretha L. Thomas, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead. Susan Guller.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., assignee of Felicita Martinez, Motion for Final Summary Judgment, the Court having heard argument of counsel on 6/9/04, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law.
FINDINGS OF FACT
2. The Plaintiff filed a PIP lawsuit against the Defendant on 12/19/02 alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on 03/28/02.
3. The Plaintiff filed sued the Defendant for medical expenses in the following amounts: in the amount of $450.00, for services provided June 3, 2002.
4. On or about 02/26/03, the Defendant filed its Answer and Affirmative Defenses.
5. As the Defendant’s “second” Affirmative Defense (actually the only affirmative defense) raised in its Answer and Affirmative Defenses served and filed on or about 2/26/03, the Defendant alleges it had reasonable proof it was not responsible for payment of the subject bills in that the bills submitted were fraudulent in that there were charges for services which were not rendered or billed under the current CPT codes which were not applicable, or were charges submitted for treatment for injuries which never occurred.
6. The Defendant served and filed a Motion to Amend Answer and Affirmative Defenses with attached Amended Answer and Affirmative Defenses on or about 6/4/04, and never set same down for hearing and at the time of the summary judgment hearing, there were no additional affirmative defenses raised besides the one raised in its initial Answer.
7. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Jeanette Alonso, taken on 12/03/03. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
8. According to Ms. Alonso, the Defendant received medical bills from Cicero Ortho-Med Center on 6/26/02 for date of service 6/3/02 in the amount of $450.00.
9. According to the adjuster, this bill was not paid by UNITED AUTOMOBILE, “[b]ecause there are discrepancies that we have with the file as a whole, including all the other bills received from the provider, which would be, some of these bills would be from the provider that referred Ms. Martinez to Cicero Ortho.” (Page 13, Lines 11-16). According to the adjuster, this was the only reason why the subject bill was not paid. (Page 14, Lines l-2).
10. The Plaintiff filed the deposition of Felicita Martinez taken on 12/1/03 with the Court. Ms. Martinez testified that she was in the subject accident, sustained injuries, received treatment, was referred by her doctor during the course of her treatment to a specialist, the name of the medical care provider was Cicero Ortho-Med Center where she was examined by the specialist, and confirmed their business location.
11. The Plaintiff filed affidavits of the treating physician, Antonio Juan Maza, M.D., and person with the most knowledge of the billing and records from Cicero Ortho Med Center, Ana Cicero, which establish that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, the doctor was licensed, and all of the treatment was related to the subject accident, reasonable and medically necessary.
12. In the instant case, it remains undisputed that the Defendant received medical bills from the Plaintiff in the amount of $450.00 for date of service 6/3/02. There remains due and owing $450.00 times 80% which equals $360.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
13. UNITED AUTOMOBILE untimely served an affidavit of Jeanette Alonso (although the Notice of Filing states Estrella Godoy) on 6/8/04, and the Plaintiff objected on the record, and requested that the Court not consider the Affidavit at the hearing since it was untimely. The Court granted the Plaintiff’s request and did not consider the affidavit.
14. Further, the Defendant served and filed a Motion to Allow Deposition of Claimant and for Continuance of Plaintiff’s Motion for Summary Judgment which the Court denied on the day of the hearing, finding that they Defendant had at least six (6) months to take this deposition from the time that it was initially taken and terminated up through and including the date of the hearing.
15. The Defendant has failed to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician to dispute the reasonable, related and necessary medical services and expenses.
16. As evidence by Ana Cicero’s testimony and the deposition testimony of the adjuster, the Plaintiff timely submitted its bills in compliance with Florida Statutes § 627.736 to UNITED AUTOMOBILE along with the medical records, HCFA billing forms and assignment of benefits, and otherwise complied with all conditions precedent.
ISSUES OF LAW
17. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
18. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
19. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes § 627.736(7).
20. The Defendant has failed to establish that it had reasonable proof that it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter as the treating physicians stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding medical expenses remain due and owing plus interest from 30 days after receipt of each bill up to the present.
21. The recent appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla.L.Weekly Supp. 204 (11th Judicial Circuit 2004) further supports the Plaintiff’s position for a Summary Judgment. In Cabello, the injured insured obtained treatment from the appellee-plaintiff who submitted claims to United Automobile. The trial court granted summary judgment in favor of the plaintiff on the issues of countersignature and whether the treatment was reasonable, related and necessary. The plaintiff submitted the affidavit of the treating physician to establish the benefits sought were reasonable, related and necessary. United Automobile submitted letter from a claims adjuster stating the IME physician felt the treatment was not reasonable, related or necessary. The appellate court affirmed the entry of summary judgment and stated, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.”
22. Also, United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position. In Mendoza, the insured sustained injuries in an automobile accident on 3/25/01. Thereafter he obtained treatment from various providers who submitted claims to United Automobile. The plaintiff sued to recover the PIP benefits and moved for summary judgment. The plaintiff filed an affidavit of a medical doctor who concluded treatment provided to the insured was reasonable, related and necessary to injuries sustained as a result of the subject accident. The trial court granted summary judgment in favor of the plaintiff.
23. The defendant appealed claiming the trial court abused its discretion in granting summary judgment. The appellate court affirmed the entry of summary judgment finding once the plaintiff successfully met its burden of establishing the non-existence of an issue of material fact, the burden switched to the defendant to demonstrate the existence of such an issue. The appellate court determined the defendant failed to meet its burden. The defendant did not file an affidavit or any other countervailing evidence to refute the medical treatments as being reasonable, related and necessary. The appellate court also found the deposition testimony of the defendant’s adjuster concerning the IME physician’s report failed to create a genuine issue of material fact.
24. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611So.2d 69 (Fla. 4th DCA 1992). In Williamson, the plaintiffs challenged a final judgment in favor of the defendant-insurance company in a personal injury action. The issue on appeal dealt with whether the trial court erred in denying the plaintiffs’ motion for a directed verdict on the issue of permanent injury. The injured plaintiff stated at trial he sustained a back injury several years prior to the subject automobile accident. Those injuries resolved shortly after the injury, but resurfaced following the subject crash. The plaintiffs offered testimony of three physicians on the issue of permanency of the plaintiff’s injuries and that these injuries resulted from the subject accident. The defendant presented two physicians who failed to refute the plaintiffs’ experts’ findings. The trial court denied the plaintiffs’ motion for directed verdict on the issue of permanency and the jury found the plaintiff did not sustain a permanent injury. A motion for retrial was denied.
25. The appellate court’s opinion discussed the standard for surviving a motion for directed verdict when faced with uncontroverted medical testimony. The appellate court stated a party opposing a motion for directed verdict must come forward with either countervailing evidence of the permanency issue or must severely impeach the proponent’s expert. The court further determined a jury is not free to reject the uncontroverted medical testimony indicating a permanent injury. Vega v. Travelers Indemnity Co., 520 So.2d 73 (Fla. 3d DCA 1988).
26. The Defendant does not have any basis under its contract or §627.736(4) or (7) to establish that it is not responsible for the medical expenses in the amount of $450.00 for services provided on 6/3/02.
27. The Defendant has failed to establish that the subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
28. As the Defendant’s “second” Affirmative Defense (actually the only affirmative defense) raised in its Answer and Affirmative Defenses served and filed on or about 2/26/03, the Defendant alleges it had reasonable proof it was not responsible for payment of the subject bills in that the bills submitted were fraudulent in that there were charges for services which were not rendered or billed under the current CPT codes which were not applicable, or were charges submitted for treatment for injuries which never occurred.
29. The Defendant’s fraud defense has not been plead properly and/or the Defendant has failed to provide any record evidence of fraud as of this date. Florida Rule of Civil Procedure 1.120(b) states in pertinent part, “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake should be stated with such particularity as the circumstances may permit”. Fla.R.Civ.Pro. 1.120(b). As long has been the rule in Florida that whenever fraud is relied on, allegations relating thereto should be specific, and facts constituting fraud should be clearly stated, and that position has not been abandoned by the adoption of the Florida Rules of Civil Procedure. Kutner v. Kalish, 173 So.2d 763 (Fla. 3rd DCA 1965).
30. Failure to allege fraud with particularity is grounds for dismissal of the claim. General Dynamics Corp. v. Hewitt, 225 So.2d 561 (Fla. 3rd DCA 1979). Elements of fraud are misrepresentation of material fact, knowledge that misrepresentation is false, intention that the other party rely, justifiable reliance and resulting injury or damage. See Eastern Cement v. Halliburton Co., 600 So.2d 469 (Fla. 4th DCA 1992); Arnold v. Weck, 388 So.2d 269 (Fla. 4th DCA 1980).
31. The Defendant has failed to comply with these requirements in this case, has failed to prove fraud as of this date, and this defense is stricken and/or the Court rules in favor of the Plaintiff on this issue accordingly.
32. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Felicita Martinez, and submitted to UNITED AUTOMOBILE by the subject provider, CICERO ORTHO-MED CENTER, and the Defendant’s failure to pay the Plaintiff’s medical bills at full 80% pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
33. The Plaintiff has complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgment as a Matter of Law regarding payment of the subject bills at 80% minus the deductible plus interest from 30 days after receipt of each bill up to and including the present.
34. The Plaintiffs are entitled to Final Summary Judgment in the amount of $360.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
35. This Court finds that the Plaintiff is entitled to attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly. [See 11 Fla. L. Weekly Supp. 1081a]
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