11 Fla. L. Weekly Supp. 835a
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 bills were not paid due to lack of countersignature and affidavit of physician who conducted independent medical examination after last date of service claimed — 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 — Fraud — Affirmative defense of fraud is stricken where insurer failed to plead fraud properly and has failed to provide any record evidence of fraud — No merit to affirmative defense of lack of proper licensing of medical provider where there is no requirement that provider submit licenses with bills, and insurer has failed to offer any evidence to rebut physician’s affidavit asserting proper licensing — Summary judgment granted in favor of provider
SOUTH FLORIDA INSTITUTE OF MEDICINE, a/a/o RUBETH GRIFFIS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-373 SP 25(2). June 21, 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, SOUTH FLORIDA INSTITUTE OF MEDICINE, a/a/o RUBETH GRIFFIS, Motion for Final Summary Judgment, the Court having heard argument of counsel on 6/7/04, 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 01/10/02 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 06/08/01.
3. The Plaintiff sued for medical bills in the amount $3,715.00 for dates of service 6/29/04 through 8/30/01.
4. On or about 6/28/02, the Defendant filed its Answer and Affirmative Defenses.
5. On or about 2/4/04, the Defendant filed its Motion for Leave to Amend its Answer and Affirmative Defenses and on 2/4/04, the Defendant filed its Amended Answer and Affirmative Defenses.
6. The Defendant’s First Affirmative contained in its Answer and its Amended Answer 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.
7. The Defendant’s Second Affirmative contained in its Answer and its Amended Answer affirmatively alleges that the subject claim for insurance benefits is fraudulent in that there were inconsistencies in the treatment described by the claimant and that which Defendant was billed for.
8. The Defendant’s Third Affirmative contained in its Amended Answer affirmatively alleges that the services rendered to the claimant were unlawful in that the Plaintiff lacks the proper licensing to perform the medical services; accordingly the medical bills are not payable and are therefore, not overdue.
9. The Plaintiff filed the deposition transcript of the insured/claimant, Rubeth Griffis, who testified to her injuries, testified, she sought medical care and attention for her injuries at SOUTH FLORIDA, received therapy at SOUTH FLORIDA, and described the therapy that she received at SOUTH FLORIDA.
10. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Pamela Winegardner, taken on 7/17/03. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
11. According to Ms. Winegardner, the Defendant received medical bills from SOUTH FLORIDA on 8/3/01 for dates of service 6/29/01 through 7/12/01 in the amount of $2,375.00. Ms. Winegardner testified that none of these bills were paid because the bills did not include a countersignature.
12. Also, Ms. Winegardner testified UNITED AUTOMOBILE received medical from SOUTH FLORIDA on 9/6/01 for dates of service 7/23/01 through 8/23/01 in the amount of $1,192.00. These bills were not paid because of the lack of a countersignature and there was no proof of licensing provided by SOUTH FLORIDA.
13. Ms. Winegardner also testified UNITED AUTOMOBILE received medical from SOUTH FLORIDA on 9/17/01 for date of service 8/30/01 in the amount of $148.00. This bill was not paid for the same reasons.
14. The Plaintiff filed the affidavit of the treating physician, Dr. Etna Castellanos, which established that Dr. Castellanos was licensed, and all of the treatment was related to the subject accident, reasonable and medically necessary.
15. In the instant case, it remains undisputed that the Defendant received medical bills from the Plaintiff in the amount of $3,715.00 for dates of service 6/29/04 through 8/30/01. The Plaintiff withdrew the last date of service, 8/30/01 in the amount of $148.00, therefore, there remains due and owing $3,567.00 times 80% which equals $2,853.60 minus any portion of the $2,000.00 deductible which has not been met ($1,166.40), plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
16. UNITED AUTOMOBILE untimely served an affidavit from a physician who performed an IME, Dr. Joel Kallan, M.D., on 8/14/01. Despite Plaintiff’s objection to the consideration of this affidavit with attached report, the Court considered the testimony of Dr. Kallan. Because the Plaintiff withdrew the only applicable date of service, 8/30/01, there is no record medical evidence to support the basis for the non-payment of the subject medical expenses or refute the sworn testimony of Dr. Castellanos.
17. 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.
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, 11FIa. 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 $3,567.00 for services provided 6/29/01 through 7/12/01.
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 contained in its Answer and its Amended Answer, it affirmatively alleges that the subject claim for insurance benefits is fraudulent in that there were inconsistencies in the treatment described by the claimant and that which Defendant was billed for.
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. The Defendant’s Third Affirmative contained in its Amended Answer affirmatively alleges that the services rendered to the claimant were unlawful in that the Plaintiff lacks the proper licensing to perform the medical services; accordingly the medical bills are not payable and are therefore, not overdue. Pursuant to Ortega v. United Automobile Insurance Company, 847 So. 2d 994 (Fla. 3rd DCA 2003), there is no requirement in § 627.736 that the medical care provider submit its licenses with its medical bills. Further, the Plaintiff has proved that the treatment was lawfully rendered through the affidavit of the treating physician, which has been filed with this Court and the Defendant has failed to offer any evidence to rebut the doctor’s affidavit. Finally, it has failed to specifically make the necessary allegations under the law and has offered no evidence on the issue of unlawful treatment. The Defendant must 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.
37. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Rubeth Griffis, and submitted to UNITED AUTOMOBILE by the subject provider, SOUTH FLORIDA, 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.
38. 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.
39. The Plaintiffs are entitled to Final Summary Judgment in the amount of $1,687.20 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
40. 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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