11 Fla. L. Weekly Supp. 1079a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Insurer that presented deposition testimony of adjuster and insured’s examination under oath failed to either impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician to dispute reasonable, related, and necessary medical services and expenses — Medical provider is entitled to summary judgment where there does not exist any question of material fact regarding reasonableness, relatedness, and necessity of medical expenses and insurer’s failure to pay medical bills at full 80% — Affirmative defenses — Fraud — Insurer failed to specifically state fraud claim where insurer failed to state that it relied on billings and was damaged by expenses incurred in investigating fraudulent claim, insurer that did not pay bills did not sustain damage or rely to its detriment on claims for payment, and insurer has not shown or specified that provider had knowledge that alleged misrepresentation is false and intended that insurer rely upon it
COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Martha Granados, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-14940 CC 25 (2). September 13, 2004. Teretha L. Thomas, Judge. Counsel: Kevin W. Whitehead. Darien M. Doe.
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 Martha Granados, Motion for Final Summary Judgment, the Court having heard argument of counsel on 8/20/04, after due notice to the parties, 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 sued the Defendant on 12/31/02 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 1/26/02.
3. The Plaintiff filed its Amended Complaint on or about 6/3/03, and this Court granted the Plaintiff’s Motion to Amend the Complaint on 6/30/03, deeming the Amended Complaint filed as of that date.
4. The Plaintiff sued the Defendant for medical expenses in the amount of $9,009.00, for services provided 9/9/02 through 12/17/02.
5. The Defendant filed an Answer to the Amended Complaint on 6/25/03 and 7/10/03.
6. The Defendant’s first Affirmative Defense in its Answer filed on 7/10/03 alleges the claimant failed to cooperate with the Defendant in the investigation of her claim where she failed to submit her PIP application and sworn affidavit. Her failure to cooperate prejudiced the Defendant in the investigation of her claim and was a breach of a condition precedent to recover benefits under the policy.
7. The Defendant did not argue this defense at the hearing, did not file any affidavits in opposition to the Plaintiff’s motion or file any documentation to support this defense.
8. As the Defendant’s second Affirmative Defense in its Answer dated 7/10/03, the Defendant alleges the Plaintiff submitted fraudulent bills where the claimant/insure testified in her sworn statement she was healed, but then treated with the Plaintiff 8 months after the accident. Additionally, the claimant testified in her sworn statement that after the accident, she had a little pain in her arm and leg, but the Plaintiff treated claimant’s cervical, thoracic and lumbar spine.
9. The Defendant has provided no evidence to legally support these allegations besides filing the Examination under Oath of the claimant, Martha Granados.
10. The Plaintiff filed the deposition transcript of the insured/claimant, Martha Granados, who testified she was in the subject motor vehicle accident, described the accident, testified she was driving her brother’s automobile at the time of the accident which was insured by United Automobile, testified that she was injured as a result of the accident, described her injuries, testified that she sought medical care an attention for her injuries at County Line Chiropractic, received therapy at County Line Chiropractic, and described the therapy. (See deposition transcript of Martha Granados taken on 8/25/03 and filed with the Court).
11. The Plaintiff filed affidavits of Dr. Elliot Cintron, D.C. and Christy Williams, the person with the most knowledge of the billing and records from COUNTY LINE CHIROPRACTIC, which established that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, the doctor was licensed and the treatment was rendered under his supervision, the clinic accepted an assignment of benefits, and all of the treatment was related to the subject accident, reasonable and medically necessary.
12. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Tracy Chase, taken on 2/17/03. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
13. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 9/24/02 for dates of service 9/9/02 through 9/18/02 in the amount of $1,169.00. These bills were not paid due to fraud by the insured and by the claimant, the charges were above the usual and customary, and the claimant’s failure to return a completed PIP package.
14. The adjuster’s assertion of fraud by the clinic is based on the claimant’s EUO statements that she injured her arm and leg in the subject accident and the clinic billed for treatment to the cervical, thoracic and lumbar spine. Ms. Chase admitted the claimant was not asked at her EUO if she injured her back. The adjuster’s assertion of fraud by the claimant is also based on the claimant’s alleged EUO assertions that her injuries “apparently” healed.
15. Ms. Chase also testified no deductible was applicable to Ms. Granados’ PIP claim.
16. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 9/25/02 for dates of service 8/31/02 through 9/4/02 in the amount of $1,006.00. These bills were not paid for the same reasons.
17. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 10/1/02 for dates of service 9/19/02 through 9/25/02 in the amount of $812.00. These bills were not paid for the same reasons.
18. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 10/8/02 for dates of service 9/26/02 through 10/2/02 in the amount of $1,051.00. These bills were not paid for the same reasons.
19. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 10/14/02 for dates of service 10/3/02 through 10/9/02 in the amount of $634.00. These bills were not paid for the same reasons.
20. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 10/22/02 for dates of service 10/10/02 through 10/15/02 in the amount of $850.00. These bills were not paid for the same reasons.
21. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 11/5/02 for dates of service 10/24/02 through 10/30/02 in the amount of $684.00. These bills were not paid for the same reasons.
22. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 11/13/02 for dates of service 11/4/02 through 11/5/02 in the amount of $456.00. These bills were not paid for the same reasons.
23. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 12/3/02 for dates of service 11/20/02 through 11/21/02 in the amount of $431.00. These bills were not paid for the same reasons.
24. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 12/9/02 for dates of service 11/26/02 through 12/2/02 in the amount of $679.00. These bills were not paid for the same reasons.
25. According to Ms. Chase, the Defendant received medical bills from County Line Chiropractic on 1/7/03 for dates of service 12/12/02 through 12/17/02 in the amount of $806.00. These bills were not paid for the same reasons.
26. The Defendant did not schedule an IME and never requested or filed a Peer Review.
27. In the instant case, there remains due and owing $9,009.00, for services provided 9/9/02 through 12/17/02 times 80% which equals $7,207.20, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
28. UNITED AUTOMOBILE did not file anything in opposition to the Plaintiff’s Motion for Summary Judgment except the examination under oath taken of the claimant, and 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.
29. 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.
30. According to the affidavit of Christy Williams 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.
ISSUES OF LAW
31. 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.
32. 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.
33. 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).
34. 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.
35. The 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 Motion for 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.”
36. 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.
37. 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.
38. 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).
39. 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.
40. 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).
41. 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 $9,009.00.
42. 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.
43. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Martha Granados, 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.
44. In regards to the Defendant’s Fraud Affirmative Defense, 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).
45. 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). The Defendant has failed to comply with these requirements in this case and has failed to offer any proof which constitutes fraud.
46. 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).
47. Fraud must be pleaded with specificity, and all essential elements must be stated, whether on complaint or defense. Peninsular Florida Dist. Council of Assemblies of God v. Pan American Inv. & Dev. Corp., 450 So.2d 1231 (Fla. 4th DCA 1984). Pleading fraud without particularity in an affirmative defense did not raise fraud issue for trial. Cady v. Chevy Case S. & L. Assoc., 528 So. 2d 136 (1988). Elements not pled may not be inferred from context. Myers v. Myers, 652 So.2d 1214 (Fla. 5th DCA 1995). The Defendant failed to properly plead or prove fraud in its second affirmative defenses, and therefore, this Court should grant the Plaintiff’s motion on this issue.
48. Defendant fails to state that it relied on the representations on the billings submitted and in doing so was damaged by the expenses incurred in investigating a fraudulent claim. In addition, the defendant did not pay any of plaintiff’s bills, therefore, it has not sustained any damage nor relied to its detriment on plaintiff’s claims for payment. Moreover, the defendant has not shown nor specified that plaintiff had knowledge that the alleged misrepresentation is false and that it intended that the defendant rely upon it. As such, the Defendant failed to specifically state a claim for fraud.
49. As of this date, the Defendant either failed to prove any facts to support its defenses or file any motions entitling it to Judgment as a Matter of Law on these defenses.
50. 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.
51. The Plaintiffs are entitled to Final Summary Judgment in the amount of $7,207.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
52. 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.
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FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Martha Granados’, Motion for Summary Judgment, the Court having heard argument of counsel on 8/20/04 after the parties receiving notice, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Martha Granados, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of SEVEN THOUSAND TWO HUNDRED SEVEN DOLLARS AND TWENTY CENTS ($7,207.20) plus interest in the amount of SEVEN HUNDRED FIFTY THREE DOLLARS AND FIVE CENTS ($753.05), for a total amount of SEVEN THOUSAND NINE HUNDRED SIXTY DOLLARS AND TWENTY FIVE CENTS ($7,960.25), 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 COUNTY LINE CHIROPRACTIC 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. [See 12 Fla. L. Weekly Supp. 243a.]
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