11 Fla. L. Weekly Supp. 299a

Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary medical expenses — No abuse of discretion in granting summary judgment in favor of insured on claim for PIP benefits for medical treatment preceding date insurer suspended payment of further benefits based on independent medical examination which resulted in opinion that further treatment would not be reasonable where motion for summary judgment was supported by affidavit of physician who concluded that treatment provided to insured for period prior to suspension of benefits was reasonable, related, and necessary and insurer failed to produce countervailing evidence that claimed medical expenses were not reasonable, related, and necessary — IME report failed to create genuine issue of material fact as to treatment rendered prior to suspension of benefits — Appellate attorney’s fees awarded to insured

UNITED AUTO INS. CO., Appellant, v. JULIO CESAR MENDOZA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-534 AP. L.C. Case No. 2001009819SP2. February 24, 2004.

(Before: JOSE M. RODRIGUEZ, DENNIS J. MURPHY, DAVID C. MILLER, JJ.)

This is an appeal from a final summary judgement entered in favor of Appellee in an action for Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Appellant. We affirm.

The facts reflect that on March 25, 2001, Appellee sustained personal injuries as a result of an automobile accident. At the time of the accident Appellee was covered under a Personal Injury Protection insurance policy issued by Appellant. Thereafter, Appellee sought medical treatment from various providers. At Appellant’s request, Dr. Guillermo Blanco performed an Independent Medical Examination of Appellee on May 15, 2001. Dr. Blanco reported that in his opinion, any further medical treatment of the Appellee would not be reasonable. Although appellant advised appellee it was suspending payment for medical treatments after June 12, 2001, payment for medical treatments provided during the period of April 10, 2001 through June 12, 2001 was denied. On October 18, 2001, Appellee brought suit for recovery of PIP benefits under the policy issued to him by Appellant. On October 4, 2002, Appellee moved for Summary Final Judgment. The motion was supported by the affidavit of Arnaldo V. Lopez, M.D., who concluded that based upon his review of the entire file the treatment provided to Appellee for the period of April 10, 2001 through June 12, 2001 was “reasonable, related and necessary for the care of the injuries which he sustained as a result of the automobile accident on 03-25-01.”¹ Appellee’s motion for summary judgment was granted on November 18, 2002 based upon the Court’s finding that “there exists no genuine issue of material fact concerning the Defendant UNITED AUTOMOBILE’s failure to obtain reasonable proof that it was not responsible for the payment of Plaintiff MENDOZA’s subject medical expenses at issue in the instant cause. United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998).” Final Summary Judgment was entered in favor of Appellee and against Appellant in the total amount $3,376.77, from which Appellant appeals.

The sole issue on appeal is whether the trial court abused its discretion by entering final summary judgment for appellee, i.e., whether there were disputed issues of material fact regarding whether the challenged medical treatment was reasonable, related, and necessary. A party moving for a summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Where the moving party offers evidence to support its claim of the nonexistence of a genuine issue of material fact, the nonmoving party “must demonstrate the existence of such an issue or issues either by countervailing facts or justifiable inferences from the facts presented.” Carbonell v. Bell South Telecommun., 675 So. 2d 705 (Fla. 3d DCA 1996). We affirm and hold that once appellee successfully met his burden of establishing the non-existence of an issue of material fact on his claim, the burden switched to Appellant to demonstrate the existence of such an issue. Appellant failed to meet this burden by its non-production of opposing affidavits, medical reports of other counterveiling evidence that the claimed medical treatments for the period of April 10 through June 12, 2001, were not reasonable, related and necessary. Based upon the deposition testimony of Sisy Mukerjee, we find that Dr. Blanco’s IME report failed to create a genuine issue of material fact as to the treatment or services rendered prior to June 12, 2001.

Although Appellant argues in its initial brief that the Court entered summary judgment in favor of Appellee because Appellant did not have a medical report stating that the treatment was not reasonable, related or necessary, summary judgement could have been properly granted due to appellant’s failure to present counterveiling proof once Appellant successfully established the nonexistence of a genuine issue of material factual as to the treatments provided prior to June 12, 2001. We are guided by the rule that even when based on erroneous reasoning, a conclusion or decision of the trial court will generally be affirmed if an alternative theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Further, in appellate proceedings, the decision of the trial court has the presumption of correctness, and the burden is on appellant to demonstrate error. Applegate, supra, at 1152.

Although not dispositive of our decision, we adhere to the view that under Fla. Stat. 627.736(7)(a),² a medical report stating that the treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment of PIP benefits. See United Auto. Ins. Co. v. Viles, 726 So. 2d 320, (Fla. 3d DCA 1998), Rev. Denied, 735 So. 2d 1289 (Fla. 1999). Contrary to allegations by Appellant, the statutory requirement that an insurer must first obtain a medical report before electing to withdraw payment, does not alter the burden of proof in a lawsuit for PIP payments. See Derius v. Allstate Indemnity Co., 723 So. 2d 271, 273 (Fla. 4th DCA 1998). The holdings in United States Automobile Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) and Derius v. Allstate Insurance Co., 837 So. 2d 406 (Fla. 2003) are limited to the reasonable proof requirement set forth in Fla. Stat. 627.736(4)(b)³ and do not affect the appellant’s burden of proof in a proceeding for summary judgment. Additionally, Appellee’s motion for appellate attorneys fees is hereby granted.

Accordingly, it is hereby ORDERED AND ADJUDGED that the Final Judgment on Plaintiff’s Motion for Final Summary Judgment is AFFIRMED.

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¹The plaintiff in a PIP case has the burden of establishing that the payments it seeks were reasonable, related to the accident and necessary for treatment. Derius v. Allstate Indemnity Co., 723 So. 2d 271(Fla. 1998).

²Fla. Stat. 627.736(7)(a) provides that an insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, “unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary.”

³Under section 627.736(4), PIP benefits shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy. An insured may seek the payment of benefits for a covered loss by submitting “reasonable proof” of such loss to the insurer; if the benefits are not paid within thirty days and the insurer does not have reasonable proof that is not responsible for the payment, the payment is “overdue.” However, an insurer may still contest the reasonableness or necessity of a claim beyond the 30-day period if it has proof that it is not responsible for payment. United Automobile Insurance Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001). The concurring opinion of Justice Pariente in the Rodriguez, discusses in great detail the distinction between Fla. Stat. Sec. 627.736(7)(a) and related statutory enactments concerning the procedural aspects to a challenge by the insurer to reasonableness, relatedness, or necessity of the services or treatment rendered.

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