11 Fla. L. Weekly Supp. 922a
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Where medical provider filed affidavit of treating physician in support of motion for summary judgment, and insurer did not file anything in opposition to motion but relied on testimony of litigation adjuster that expenses were above usual and customary, insurer has failed to substantially impeach medical expert testimony of physician or present countervailing evidence from licensed physician to dispute reasonableness, relatedness or necessity of medical expenses — Summary judgment granted in favor of provider
CICERO ORTHO-MED CENTER, INC., assignee of Jorge Fermin, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-10909 SP 25(1). August 10, 2004. Final Judgment. August 9, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead. Russell Kolodziej.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., assignee of Jorge Fermin, Motion for Final Summary Judgment, the Court having heard argument of counsel on 7/12/04, 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 Plaintiffs filed a PIP lawsuit against the Defendant on 10/1/02 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 3/11/02.
3. The Plaintiff sued the Defendant for medical expenses in the amount of $800.00 for services provided 3/25/02 and 6/24/02.
4. On or about 11/25/02, the Defendant filed its Answer and Affirmative Defenses.
5. The Defendant’s sole defense at the time of the hearing is that the subject medical bills were not reasonable, related or necessary.
6. As of this date, the Defendant has either failed to prove any facts to support this defenses or file any motions entitling it to Judgment as a Matter of Law on this defenses.
7. The Plaintiff filed the deposition transcript of the insured/claimant, Jorge Fermin, who testified that he was in the subject motor vehicle accident on 3/11/02, described the accident, that he was driving his insured vehicle at he time of the accident, that his vehicle was insured by United Automobile, testified that he was injured as a result of the accident, described his injuries, testified that he sought medical care an attention for his injuries at CICERO with Dr. Antonio Juan-Maza. (See Deposition transcript of Jorge Fermin taken on 6/3/03 and filed with this Court on 3/19/04).
8. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Mary Vojtasek, taken on 3/30/04 on 4/7/04. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
9. The Plaintiff filed affidavits of the treating physician, Dr. Antonio Juan-Maza, and the person with the most knowledge of the billing and records from CICERO, Ana Cicero, which establish that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and all of the treatment was related to the subject accident, reasonable and necessary.
10. 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 3/25/02 and $350.00 for date of service 6/24/02 for a total of $800.00. There remains due and owing $800.00 times 80% which equals $640.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
11. UNITED AUTOMOBILE did not file anything in opposition to the Plaintiff’s Motion for Summary Judgment, but instead, relied upon the deposition testimony of its adjuster. The adjuster did not testify to an amount that was reasonable and necessary, but rather, testified that the subject expenses were above usual and customary.
12. The Defendant has failed to 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.
13. 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
14. 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.
15. 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.
16. 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.
17. 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, 611 So.2d 69 (Fla. 4th DCA 1992).
18. 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 $800.00.
19. 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.
20. Because there does not exist any question of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Jorge Fermin, 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.
21. 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.
22. The Plaintiffs are entitled to Final Summary Judgment in the amount of $640.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
23. 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. 1076a]
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FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., assignee of Jorge Fermin’s, Motion for Summary Judgment, the Court having heard argument of counsel on 7/12/04 and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, CICERO ORTHO-MED CENTER, INC., assignee of Jorge Fermin, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of SIX HUNDRED AND FORTY DOLLARS ($640.00) plus interest in the amount of NINETY ONE DOLLARS AND SEVENTY FIVE CENTS ($91.75), for a total amount of SEVEN HUNDRED THIRTY ONE DOLLARS AND SEVENTY FIVE CENTS ($731.75), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to CICERO ORTHO-MED CENTER, INC., and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
2. This Court reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiff, and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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