11 Fla. L. Weekly Supp. 878a
Insurance — Personal injury protection — Error to set aside verdict based on insured’s failure to personally appear at trial where attorney appeared on behalf of insured and was prepared to prosecute case through insured’s deposition and response to interrogatories, testimony of expert and records custodians of medical providers, and insured’s medical bills — Coverage — Late submitted bill — Error to grant judgment notwithstanding verdict based on submission of some medical bills more than thirty days after services were rendered where, even if five untimely bills were excluded, there were still timely bills in evidence — Even though 2001 revision to statute that extends time for filing bills which are originally filed with wrong carrier is inapplicable, reason and intent of statute compels court to find that where diligent effort was made to comply with statutory requirements in as timely a fashion as possible equity should prevail and medical providers should be compensated as determined by jury — Further, insurer suffered no prejudice since untimely receipt of bills did not prevent timely examination of insured — Insurer waived enforcement of statutory time limits by continuing to investigate accident and conducting examination under oath, independent medical examination, and peer review of all bills — Appellate attorney’s fees awarded to prevailing insured
CONSUELO D. ALZATE, Appellant, vs. UNITED AUTO INSURANCE CO., a Florida corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-465 AP. L.C. Case No. 99-7724 CC 25. July 20, 2004. On appeal from the County Court for Miami-Dade County, Wendell M. Graham, Judge. Counsel: Phillip D. Parrish and William C. Ruggiero, for Appellant. Michael J. Neimand, for Appellee.
(Before SCOTT BERNSTEIN, ROSA RODRIGUEZ and DENNIS MURPHY, JJ.)
(DENNIS MURPHY, J.) In the court below, the Appellee, United Automobile Insurance Company (“United Auto”) successfully moved for a judgment notwithstanding the verdict (“JNOV”) based upon: 1) the appellant/plaintiff did not personally appear at trial, and 2) some of the medical bills were not submitted timely in accordance with §627.736(5)(b), Fla. Stat. (1999).
We first address the granting of the JNOV based upon the nonappearance of Ms. Alzate. Upon review of the record, we find that the lower court gave an overly broad scope to the application of Stern v. Commercial Construction Corp., 268 So. 2d 549 (Fla. 3d DCA 1972) and other similar cases argued by the appellee below. In Stern, neither the attorney nor client appeared at trial. In McIlveen, the attorney was unable to locate his client, appeared at trial alone after having been granted three continuances, and was unprepared to prosecute the case. McIlveen v. Metropolitan-Dade County, 276 So. 2d 844 (Fla. 3d DCA 1973). The reviewing court found that the dismissal of the case for failure to prosecute was not an abuse of discretion under the facts of the case. Id. The foregoing cases are readily distinguished from the instant one. In the case sub judice, the attorney appeared on behalf of his client, as permitted by Fla. R. Jud. Admin. 2.060(1). The attorney was prepared to prosecute his case through his client’s deposition and response to interrogatories; the testimony of an expert and the records custodians of medical providers, together with Ms. Alzate’s medical bills. Through the foregoing testimony and demonstrative evidence, counsel presented a prima facie case that the medical services were related and necessary. In the Stern and McIlveen cases, the attorneys were unprepared to prosecute the case without the presence of the client. This contrasts with the current case where the appellant successfully prosecuted her case, even with Ms. Alzate being absent, as demonstrated by the verdict being returned in her favor. Accordingly, the lower court erred when it set aside the verdict based upon the appellant’s absence at trial.
It should be noted that, prior to trial, the appellant had moved out of state but had previously preserved her testimony by answering interrogatories and being deposed. Under these circumstances, her deposition transcripts were admissible under Fla. R. Civ. P. 1.330(a)(3), which provides, in relevant part, “[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose, if the court finds . . . (b) that the witness is at a greater distance than 100 miles from the place of the trial or hearing, or is out-of-the state. . . .” The appellant did not raise this argument below, so is now barred from raising it for the first time on appeal. See, Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981).
We further find that the lower court erred when it granted United Auto’s motion for judgment notwithstanding the verdict based upon the submission of some of the medical bills beyond the thirty day limit as set forth in §627.736(5)(b), Fla. Stat. (1999). This statutory section provides that a PIP insurer “. . . is not required to pay charges for treatment or services rendered more than 30 days before the post-marked date of the statement . . . .” Of the bills submitted during trial, only five were for charges incurred more than 30 days before the post-marked date of the bills. Therefore, even if all the untimely bills were excluded, there were still bills in evidence that would qualify for payment under the foregoing statute.
This is not a “soft tissue” whiplash PIP suit, which presents subjective injuries. Ms. Alzate sustained a fractured sternum and ribs in an automobile accident. The type of injuries sustained in this case are not the type that can be faked or exaggerated, they are provable with certainty. The court finds that the appellant acted in good faith by timely submitting the medical bills to the insurance company listed on the accident report and that there are equitable reasons to reverse the granting of the motion for a judgment notwithstanding the verdict (“JNOV”) as to the alleged “untimely” medical bills. Even though this case does not fall under 2001 revision to Florida Statute §627.736(5)(c) which provides “. . . if, however, the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with the statement of the charges. . . .”
At the scene of the accident, the officer preparing the report listed Fortune Insurance Company as the insurance carrier. This carrier was the correct insurer for the vehicle that Ms. Alzate was driving at the time of her accident. However, her PIP claims should have been submitted to United, Ms. Alzate’s carrier. The mistake was discovered on July 31, 1999, and notice provided to United on or about August 6, 1999. The bills were then submitted to United, which received them on August 20, 1999. This case presents just the sort of scenario that the recent revision seeks to remedy. Even though the 2001 version does not apply, the reason and intent of the statute compels the court to find that due to the diligent effort to comply with statutory requirements in as timely a fashion as possible in the case presented, that equity should prevail, and the medical providers should be compensated as determined by the jury.
We find that the delay in receipt of the medical bills by United caused no prejudice to the insurer, as it had Dr. Krimstein perform an IME on Ms. Alzate to determine whether her treatment was necessary and related to the injuries sustained in the subject automobile accident well beyond the time it received the “untimely” medical bills. Hence, the “untimely” receipt of the bills did not prevent the timely examination of the injured party. The ability to timely make this determination is precisely what §627.736(5)(b), Fla. Stat. (1999) seeks to preserve by requiring submission of medical bills within 30 days of treatment. Since such a meaningful exam could be and was conducted, there was no prejudice occasioned by the delay. It is also noteworthy that the insurer waited until October to perform the IME on a patient whose injuries were sustained in a May accident. This timing further indicates that no prejudice was occasioned by the delay.
The court also finds that United Auto waived enforcement of the statutory time limit by its conduct. Waiver is “the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.” Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003). If United elected to deny benefits based upon the untimeliness of the bills, it should not have continued to investigate the accident after having received the “untimely” bills. An examination under oath was conducted in September 1999 which was followed by the IME on October 1, 1999.Additionally, Dr. Krimstein, after examining Ms. Alzate and performing a peer review of the medical bills recommended that the “untimely” bills, as well as other timely ones, should be paid, at least in the amount that he found reasonable, related and necessary. United Auto’s own form indicated that, of the $11,109.00 worth of bills submitted, $5,594.00 was the amount allowed. Such conduct does not evince an intent to deny all bills based upon untimeliness, in fact, it demonstrates an intent to pay the bills after concluding its investigation. These actions waived its right to employ the statutory bar to payment due to the untimeliness of the bills. Accordingly, we reverse the lower court’s granting of the JNOV.
In light of our reversal, we find that the appellant is the prevailing party, and as such is entitled to appellate fees and costs pursuant to §627.428, Fla. Stat. (2003).
REVERSED and REMANDED for proceedings consistent with this opinion.
* * *
