11 Fla. L. Weekly Supp. 1010b
Insurance — Personal injury protection — Plaintiff who complied with all conditions precedent to suit is entitled to summary judgment as matter of law regarding payment of medical bills at 80% minus deductible, plus interest from 30 days after receipt of each bill up to and including the present where defendant had no basis under contract or statute for denying responsibility for medical expenses, and there was no question of material fact regarding these reasonable, related, and necessary medical expenses
DR. STEPHEN CHASE, a/a/o Mary Hall, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-14956 CC 25(1). August 18, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead. Matthew O’Hare.
ORDER GRANTING IN PART PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, DR. STEPHEN CHASE, a/a/o Mary Hall’s, Second Motion for Final Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Second Motion for Final Summary Judgment is GRANTED in part. 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 12/17/03 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 2/15/03.
3. The Plaintiff sued the Defendant for medical expenses in the amount of $5,380.00 for services provided 2/19/03 through 5/30/03.
4. On or about 1/19/04, the Defendant filed its Answer and Affirmative Defenses.
5. Defendant’s first, second and third affirmative defenses (paragraphs 6, 7, and 8) were stricken on 2/5/04.
6. The Court granted Plaintiff’s Motion for Summary Judgment regarding Defendant’s fourth affirmative defense on the issue of standing on 4/27/04. The Court stated it would hear the remaining issue (reasonable, related and necessary) prior to trial.
7. The Court finds there exists no genuine issue of material fact regarding some of the Plaintiff’s medical expenses which the Court determines are reasonable, related and necessary. The Plaintiff filed affidavits of the treating physician and person with the most knowledge of the billing and records from Dr. Stephen Chase’s office, which establish 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.
8. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Lisa Sanchez, taken on 3/8/04. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant,
UNITED AUTOMOBILE INSURANCE COMPANY.
9. The Plaintiff filed the EUO transcript of the insured/claimant, Mary Hall, who has testified she was in the subject motor vehicle accident on 2/15/03, described the accident, that she was driving her insured vehicle at the time of the accident, that her vehicle was insured by United Automobile, testified she was injured as a result of the accident, described her injuries, testified she sought medical care and attention for her injuries at Chase Medical Center with Dr. Stephen Chase, received therapy at Chase Medical Center, and described the therapy. (See EUO transcript of Mary Hall taken on 5/30/03 and filed with this Court on or about 2/2/04).
10. The Plaintiff also filed the claimant’s affidavit which also asserts the above stated facts.
11. The Defendant filed the affidavit of Neil Fleischer, DC, on 4/23/04, and attached his IME and peer review report. Dr. Fleischer performed an IME of Ms. Hall on 4/15/03 and issued a peer review on 3/21/04.
12. The Defendant suspended benefits for services provided after 5/21/03.
13. The Plaintiff withdrew date of service 3/15/03 for the purposes of this Motion.
14. Based upon the peer review by Neil Fleischer, DC, the Court finds there does not exist any genuine issue of material fact that the following services are reasonable, related and necessary:
CPT Code Number of treatments Price Total 99205 1 $250.00 $250.00 99211 1 45.00 45.00 72050 1 375.00 375.00 72070 1 500.00 500.00 98940 23 45.00 1,035.00 98941 1 45.00 45.00 97014 23 30.00 690.00 97035 1 35.00 35.00 97010 24 30.00 720.00 97012 10 30.00 300.00 97535 2 45.00 90.00 TOTAL $4,085.00
15. There remains due and owing $4,085.00 times 80% which equals $3,268.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date. The Plaintiff is owed the remaining balance of $3,268.00 plus interest.
ISSUES OF LAW
16. 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.
17. 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.
18. 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 from a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes §627.736(7).
19. The Defendant failed to establish that it had reasonable proof it was not responsible for payment of the subject medical bills 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.
20. 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 a 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.”
21. 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.
22. 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.
23. 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.
24. 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., 520So.2d 73 (Fla. 3d DCA 1988).
25. 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 $3,268.00.
26. The Defendant failed to establish that these subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
27. Because there do not exist any questions of material fact regarding the above stated related, reasonable and necessary medical expenses incurred by the claimant, Mary Hall, and submitted to UNITED AUTOMOBILE by the subject provider, DR. STEPHEN CHASE, DC, 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.
28. The Plaintiff 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.
29. The Plaintiff is entitled to Final Summary Judgment in the amount of $4,085.00 times 80% which equals $3,268.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date. Therefore, the Plaintiff is entitled to Summary Judgment in the amount of $3,268.00 plus interest.
30. The Plaintiff is entitled to attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party, and the Court reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly.
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