11 Fla. L. Weekly Supp. 915b
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Affidavit of PIP litigation adjuster is not sufficient to rebut sworn testimony of treating physician on issue of whether medical expenses are reasonable, necessary or related — Claims — Countersignature of insured — Assigned claim — Insured’s failure to countersign HCFA forms did not discharge insurer’s obligation to pay PIP benefits where insured has signed assignment of benefits — Affirmative defenses — Fraud defense is stricken where insurer has not alleged fraud with sufficient particularity and has failed to prove fraud — Summary judgment granted in favor of insured and medical provider
MIRELLA RODRIGUEZ, individually, and MEDLIFE HEALTH SYSTEMS, INC., assignee of Mirella Rodriguez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-3555 CC 25 (01). July 23, 2004. Wendell M. Graham, 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, MIRELLA RODRIGUEZ, individually, and MEDLIFE HEALTH SYSTEMS, INC., assignee of Mirella Rodriguez, Motion for Final Summary Judgment, the Court having heard argument of counsel on 4/5/04 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 Plaintiff filed a PIP lawsuit against the Defendant on 3/31/03 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 11/6/00.
3. The Plaintiffs sued the Defendant for the following medical expenses: MEDLIFE HEALTH SYSTEMS, INC., in the amount of $5,142.00, for services provided November 8, 2000 through February 7, 2001; ROBERT MOYA, M.D., P.A., in the amount of $1,000.00, for services provided December 4, 2000 through February 5, 2001; and ATLANTIC DIAGNOSTICS, INC., in the amount of $300.00, for services provided November 8, 2000.
4. On or about 8/25/03, 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 statue. As such, Defendant is not responsible for the subject medical bills.
6. As the Defendant’s second Affirmative Defense, the Defendant alleges it had reasonable proof it was not responsible for payment of the subject bills in that the bills submitted were fraudulent as there were inconsistencies with treatment received and treatment rendered.
7. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Jeanette Alonso, taken on 3/18/04. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE.
8. According to Ms. Alonso, the Defendant received medical bills from MEDLIFE on 11 /22/00 for dates of service 11/8/00 to 11/15/00 in the amount of $749.50. Ms. Alonso testified none of these bills were paid because some of these charges were above the usual and customary amount, the HCFA forms did not include a countersignature, the police report did not indicate any injuries, and because UNITED AUTOMOBILE did not receive proof of Dr. Vollmer’s medical license.
9. Ms. Alonso stated UNITED AUTOMOBILE next received medical bills from MEDLIFE on 12/8/00 for dates of service 11/21/00 to 11/29/00 in the amount of $908.75. Ms. Alonso testified none of these bills were paid because some of these charges were above the usual and customary amount and the HCFA forms did not include a countersignature. Ms. Alonso, however, never testified to the reasonable amount for any of the submitted medical expenses.
10. Ms. Alonso stated UNITED AUTOMOBILE next received medical bills from Roberto Moya, M.D. on 12/20/00 for date of service 12/4/00 in the amount of $500.00. Ms. Alonso testified none of these bills were paid because the charge was above the usual and customary amount. Ms. Alonso, however, never testified to the reasonable amount for any of the submitted medical expenses.
11. Ms. Alonso stated UNITED AUTOMOBILE next received medical bills from Atlantic Diagnostic Imaging for date of service 11/8/00 in the amount of $300.00. Ms. Alonso testified this bills was not paid because the HCFA forms did not include a countersignature.
12. Ms. Alonso stated UNITED AUTOMOBILE next received medical bills from MEDLIFE on 1/25/01 for dates of service 1/4/01 to 1/15/01 in the amount of $920.00. Ms. Alonso testified these bills were not paid because of the same reasons as the other bills.
13. Ms. Alonso stated UNITED AUTOMOBILE next received medical bills from MEDLIFE on 2/7/01 for dates of service 1/24/01 to 1/30/01 in the amount of $657.50. Ms. Alonso testified these bills were not paid because of the same reasons as the other bills.
14. Both the Plaintiff and the Defendant filed the EUO of the claimant/insured, Mirella Rodriguez, who testified she was in the subject motor vehicle accident on 11/6/00, described the accident, testified she was injured as a result of the accident, described her injuries, and testified that she sought medical care an attention for her injuries.
15. The Plaintiff has filed the affidavits of the treating physician, Rina Vollmer, M.D., and the billing manager of the Plaintiff’s medical facility, Paula Fonseca, which establishes that the medical expenses and treatment are related to the subject accident, reasonable and necessary.
16. The Defendant initially served and filed an untimely and defective affidavit of Dina Miller with attached IME report which was signed in New York and notarized in Florida. The Defendant withdrew the subject affidavit immediately prior to the hearing.
17. The Defendant also served and filed the affidavit of the PIP litigation adjuster, Jeannette Alonso, in opposition to the Motion for Summary Judgment. The Court does not consider Ms. Alonso’s testimony on the issue of whether the subject medical expenses are reasonable, related or necessary legally sufficient to rebut the sworn testimony of the treating physician. Further, Ms. Alonso never testified to what a reasonable charge is for the subject medical expenses in her affidavit, therefore, the testimony of Paula Fonseca regarding reasonable, ususal and customary charges is undisputed.
18. In the instant case, it remains undisputed that the Defendant received medical bills from MEDLIFE HEALTH SYSTEMS, INC., in the amount of $5,142.00, for services provided November 8, 2000 through February 7, 2001; ROBERT MOYA, M.D., P.A., in the amount of $1,000.00, for services provided December 4, 2000 through February 5, 2001; and ATLANTIC DIAGNOSTICS, INC., in the amount of $300.00, for services provided November 8, 2000. There remains due and owing $6,442.00 times 80% which equals $5,153.60 minus the $2,000.00 deductible which equals $ 3,153.60 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
19. UNITED AUTOMOBILE has not served or filed a proper 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 Rina Vollmer, M.D.
20. 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.
21. 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
22. 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.
23. 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.
24. 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).
25. 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 M.D. bills remain due and owing plus interest from 30 days after receipt of each bill up to the present date.
26. 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 $6,442.00 times 80% which equals $5,153.60 minus the $2,000.00 deductible which equals $3,153.60 plus statutory interest.
27. 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.
28. 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.
29. 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 cert. on this case, and therefore, this case is binding upon this Court at the current time.
30. 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).
31. 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).
32. 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.
33. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by MIRELLA RODRIGUEZ, individually, and submitted to UNITED AUTOMOBILE by the subject providers, 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.
34. The Plaintiff has complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgement 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.
35. The Plaintiffs are entitled to Final Summary Judgment in the amount of $3,153.60 plus statutory interest until satisfied, for which let execution issue.
36. 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 Plaintiffs’, MIRELLA RODRIGUEZ, individually, and MEDLIFE HEALTH SYSTEMS, INC., assignee of Mirella Rodriguez’, Motion for Summary Judgment, the Court having heard argument of counsel on 4/5/04 and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1 . That the Plaintiffs, MIRELLA RODRIGUEZ, individually, and MEDLIFE HEALTH SYSTEMS, INC., assignee of Mirella Rodriguez, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of THREE THOUSAND ONE HUNDRED FIFTY THREE DOLLARS AND SIXTY CENTS ($3,153.60) plus interest in the amount of EIGHT HUNDRED ELEVEN DOLLARS AND THIRTEEN CENTS ($811.13), for a total amount of THREE THOUSAND NINE HUNDRED SIXTY FOUR DOLLARS AND SEVENTY THREE CENTS ($3,964.73), 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 Downs & Associates, Trust Account 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 and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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SECOND ORDER DENYING MOTION FOR REHEARING
On June 22, 2004, the court prematurely entered an order denying defendant’s motion for rehearing. That motion had been filed prior to the issuance of this court’s order granting summary judgment in favor of Plaintiff. However, upon second review of Defendant’s motion, the court reaffirms its original decision and hereby denies Defendant’s motion for rehearing.
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