11 Fla. L. Weekly Supp. 832a
Insurance — Personal injury protection — Coverage — Medical expenses — Insurer failed to create genuine issue of material fact regarding whether medical expenses were reasonable, related or necessary where provider/assignee filed deposition of treating physician establishing that physician is licensed and all treatment was reasonable, related, and medically necessary, and insurer filed affidavit of litigation adjuster stating that injuries were unrelated to accident because insured suffered from spina bifida — Claims — Countersignature by insured — Assigned claim — Insured’s failure to countersign medical bills does not relieve insurer of liability for payment of PIP benefits to medical provider who has accepted assignment of benefits — No merit to affirmative defense of lack of proper licensing of medical provider where insurer has failed to specifically allege that it has proof that treatment was rendered by physicians without proper licenses to perform treatment or rendered unlawfully by therapists, there is no requirement that provider submit licenses with bills, and insurer has failed to offer any evidence to rebut affidavits of physician and billing clerk asserting proper licensing — Fraud — Affirmative defense of fraud is stricken where insurer failed to plead fraud properly and has failed to provide any record evidence of fraud — Summary judgment entered in favor of provider
COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Ian Foster, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-14763 CC 25 (02). June 21, 2004. Teretha L. Thomas, Judge. Counsel: Kevin W. Whitehead. Holly K. Miller, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Ian Foster’s, Motion for Final Summary Judgment, the Court having heard argument of counsel on 6/2/04, counsel for Defendant, Holly K. Miller, Esq., having failed to appear at the hearing despite proper notice, 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. Further, the record reflects that the Defendant has failed to file any document in opposition to the motion.
FINDINGS OF FACT
2. The Plaintiff filed a PIP lawsuit against the Defendant on 12/27/02 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 7/13/02.
3. The Plaintiff sued the Defendant for the following medical expenses: $5,102.00, for services provided July 17, 2002 through September 19, 2002.
4. On or about 4-16-03, the Defendant filed its Answer and Affirmative Defenses.
5. As its first Affirmative Defense, the Defendant affirmatively alleges that the Plaintiff is in violation of §627.736(5)(a). The Defendant alleges that the Plaintiff failed to have the insured or his/her guardian countersign the HCFA forms as mandated by the statute. As such, the Defendant has not been furnished with notice of the amount of a covered loss or medical bills due to non-compliance with the statute. As such, Defendant is not responsible for the subject medical bills.
6. As the Defendant’s Second Affirmative defense, the Defendant alleges it has not been furnished with written notice of the fact of a covered loss as contemplated by Fla. Stat. 627.736(4)(b) and 627.736(5)(e), insofar that Defendant has no indication that the Plaintiff’s medical personnel who rendered the alleged treatment were legally licensed to render said treatment.
7. The Defendant’s Third Affirmative Defense affirmatively alleges that Plaintiff/medical care provider failed to furnish the Defendant with statutory notice pursuant to Fla. Stat. 627.736(11). Accordingly, Plaintiff failed to properly comply with all terms and conditions of the policy which are conditions precedent to the filing of the instant action.
8. As the Defendant’s fourth Affirmative Defense, the Defendant alleges it had reasonable proof it was not responsible for payment of the subject bills in that the subject bills submitted were fraudulent in that there are inconsistencies with treatment received and treatment rendered, specifically the Patient did not mention receiving traction, exercises, manipulations, and heat in his sworn statement.
9. Plaintiff filed the deposition transcript of the insured/claimant, Ian Foster, as well as his sworn PIP No-Fault affidavit and sworn Examination under Oath. Mr. Foster testified that he was in the subject motor vehicle accident on 7-13-02, described the accident, that he was driving his insured vehicle at the 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 COUNTY LINE, received therapy at COUNTY LINE, and described the therapy.
10. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Tracey Chase, taken on 1-16-04. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
11. According to Ms. Chase, the Defendant received medical bills from COUNTY LINE on 8/5/02 for date of service 7/17/02 in the amount of $818.00, on 8/15/02 for dates of service 7/18/02 through 7/23/02 in the amount of $756.00, on 8/20/02 for dates of service 7/27/02 through 7/30/02 in the amount of $564.00, on 8/22/02 for dates of service 8/1/02 through 8/5/02 in the amount of $564.00, on 9/18/02 for dates of service 8/19/02 through 8/21/02 in the amount of $589.00, on 9/18/02 for dates of service 8/23/02 in the amount of $188.00, on 9/25/02 for dates of service 9/9/02 through 9/10/02 in the amount of $376.00, on 9/3/02 for dates of service 8/8/02 through 8/13/02 in the amount of $683.00, on 10/1/02 for dates of service 9/12/02 through 9/18/02 in the amount of $376.00, on 10/14/02 for date of service 9/19/02 in the amount of $188.00.
12. Ms. Chase testified none of these bills were paid because some of the charges were above the usual and customary amounts, the injuries were unrelated to the subject accident, there was fraud on behalf of the clinic as there is no prescription in the file for traction, manipulation heat and exercise, and the Defendant did not receive proof of licensure. Ms. Chase concluded on her own that the injuries were unrelated to the subject accident solely because the claimant suffered spinal bifida. Ms. Chase admitted that she is not a doctor and does not have any medical training.
13. The Plaintiff filed the affidavit of the treating physician, Dr. Elliot Cintron, and the person with the most knowledge of the billing and records from COUNTY LINE, Christie Williams, 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 medically necessary.
14. In the instant case, it remains undisputed that the Defendant received medical bills from the Plaintiff in the amount of $5,102.00, for services provided July 17, 2002 through September 19, 2002. There remains due and owing $5,102.00 times 80% which equals $4,081.60 minus the $2,000.00 deductible which equals $2,081.60 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
15. UNITED AUTOMOBILE has not served or filed an affidavit from a physician who performed an IME or Peer Review to support the basis for the non-payment of the subject medical expenses or refute the sworn testimony of Dr. Elliot Cintron.
16. 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.
17. The Plaintiff filed the affidavit of Kevin W. Whitehead with attached demand letter pursuant to § 627.736(11) which established that the Plaintiff complied with the statutory demand letter requirement prior to initiating suit. The Defendant has not filed anything with the Court to refute this sworn testimony and it remains undisputed.
18. 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
19. 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.
20. 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.
21. 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).
22. 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.
23. 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.”
24. Also, United Automobile Insurance Co. v. Mendoza, 11 Fla. 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.
25. 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.
26. 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). 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.
27. 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).
28. 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 $5,102.00, for services provided July 17, 2002 through September 19, 2002. There remains due and owing $5,102.00 times 80% which equals $4,081.60 minus the $2,000.00 deductible which equals $2,081.60 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
29. 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.
30. The defense of lack of countersignature is legally insufficient and this Court must strike it and/or rule in the Plaintiff’s favor on this issue accordingly. Several Courts in this jurisdiction held, against this Defendant, UNITED AUTOMOBILE, that the insured’s failure to countersign medical bills does not relieve the insurer from liability for the payment of PIP benefits to the medical provider who has accepted the assignment of PIP benefits from the insured. See Chase v. United Automobile Insurance Company, 8 Fla. L. Weekly Supp. 458 (Fla. 11th Cir. County Court 2001). Further, § 627.736(5), which provides that the insurer may pay the medical provider directly when the bills are countersigned, does not mean the insurer may not pay the medical provider when bills are not countersigned. Reasoning, that had the Legislature intended to relieve the insurer of its obligation to pay medical bills simply because an insured did not countersign same, it would have done so clearly in the statute. Id. at 459.
31. The Circuit Court for the 11th Judicial Circuit has ruled on the Countersignature issue in appellate division Case No. 01-262 AP styled Total Health Care of Florida (Oscar Blas) v. United Automobile Insurance Company, and held that the insured’s failure to countersign HCFA Forms does not discharge the insurance company’s obligation to pay PIP benefits where the insured has signed an assignment of benefits. See Total Health Care of Florida (Oscar Blas) v. United Automobile Ins. Co., 9 FLW [Fla. L. Weekly] Supp. 659a (Fla. 11th Jud. Cir. 8/13/02), rehearing denied 9 FLW [Fla. L. Weekly] Supp. 737a (Fla. 11th Jud. Cir. 9/26/02). The Third DCA denied the Writ. of Cert. on this case, and therefore, this case is binding upon this Court.
32. As the Defendant’s Second Affirmative defense, the Defendant alleges it has not been furnished with written notice of the fact of a covered loss as contemplated by Fla. Stat. 627.736(4)(b) and 627.736(5)(e), insofar that Defendant has no indication that the Plaintiff’s medical personnel who rendered the alleged treatment were legally licensed to render said treatment. Although it appears that the Defendant is attempting to plead an affirmative defense pursuant to Ortega v. United Automobile Insurance Company, 847 So. 2d 994 (Fla. 3rd DCA 2003), it has failed to specifically make the necessary allegations. The Defendant is required to specifically allege that it has proof that the treatment was rendered by doctors who did not possess the proper license(s) to perform the subject treatment and/or the treatment was rendered illegally and unlawfully by the therapists and explain why. Further, there is no requirement in § 627.736 that the medical care provider submit its licenses with its medical bills. Finally, the Plaintiff has proved that the treatment was lawfully rendered through the affidavit of the treating physician and the person with the most knowledge of billing, which has been filed with this Court and the Defendant has failed to offer any evidence to rebut the doctor’s affidavit or the billing clerk’s affidavit.
33. 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).
34. 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).
35. 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.
36. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Ian Foster, and submitted to UNITED AUTOMOBILE by the subject provider, COUNTY LINE CHIROPRACTIC, 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.
37. 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.
38. The Plaintiffs are entitled to Final Summary Judgment in the amount of $2,081.60 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
39. 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. [Editor’s note: See 11 Fla. L. Weekly Supp. 1074a.]
* * *
