11 Fla. L. Weekly Supp. 204b

Insurance — Personal injury protection — Claim forms — Countersignature — Section 627.736(5)(a) does not require signature of insured on claim form where insured has assigned benefits to plaintiff medical provider — Coverage — Denial — Unreasonable, unrelated or unnecessary medical expenses — No abuse of discretion in entering summary judgment in favor of insured on issue of whether treatment for which reimbursement was sought was reasonable, related to accident, and necessary where only evidence presented to rebut treating physician’s affidavit stating PIP benefits sought were reasonable, related to accident, and necessary for treatment was letter of claims adjuster stating that physician who conducted independent medical examination opined that any further medical treatment would not be reasonable, related or medically necessary, which is hearsay and not competent evidence

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NEUROLOGY ASSOC. GROUP TWO, INC., a/a/o Nicholas Cabello, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-167 AP. L.T. Case No. 01-14227 SP 23. January 13, 2004. On Appeal from the County Court for Miami-Dade County, the Honorable Linda S. Stein presiding. Counsel: Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Stephens Lynn Klein La Cava Hoffman & Puya, P.A., for Appellee.

(Before MARIA KORVICK, MANUEL A. CRESPO & IVAN FERNANDEZ, JJ.)

OPINION

(Per Curiam.) Nicholas Cabello was injured in an automobile accident on April 4, 2001. At the time, Cabello was insured by United Automobile Insurance Company. Cabello obtained treatment from Neurology Associates Group Two, Inc. Simultaneously, Cabello assigned any PIP benefits to Neurology Associates. In turn, Neurology Associates submitted claims to United Auto on the statutorily required “HCFA” forms. United Auto denied the claims and Neurology Associates filed suit.

Prior to trial, both parties filed Motions for Summary Judgment. The court addressed two issues. The first issue was United Auto’s affirmative defense under §627.736(5)(a), Fla. Stat. (2000), to wit: the failure of Cabello to countersign the HCFA forms. The second issue concerned whether the treatment for which reimbursement was sought was reasonable, related to the accident and necessary. The trial court GRANTED Summary Judgment for Neurology Associates. Final Summary Judgment was entered on March 27, 2002. United Auto Appeals.

The circuit courts have uniformly interpreted the countersignature requirement in §627.736(5)(a) as a permitted, not mandatory, mechanism that does not require the insured’s signature on the reimbursement form where the insured has assigned benefits to the medical provider. See Hialeah Med. Assocs., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 738b (Fla. 11th Cir. Ct., Sept. 17, 2002); Total Health Care of Fla., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 659a (Fla. 11th Cir. Ct., Aug. 13, 2002), cert. denied 848 So.2d 330 (Fla. 3d DCA 2003).

Likewise, the County Courts are in near unanimous agreement that §627.736(5)(a) does not require HCFA form 1500 to be countersigned by the insured prior to the insurance company acquiring an obligation to pay See, e.g,; Medical Specialists v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 708 (Fla. Orange Cty. Ct. 2002); USA Diagnostics, Inc. v. Star Casualty, 9 Fla. L. Weekly Supp. 410b (Fla. Broward Cty. Ct. 2002); South Florida Open MRI v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 397 (Fla. Dade Cty. Ct. 2002); Rom Diagnostics v. Allstate Ins. Co., 9 Fla. L. Weekly Supp. 392 (Fla. Orange Cty. Ct. 2002); Choice Medical Center v. Seminole Cas. Ins. Co., 9 Fla. L. Weekly Supp. 196 (Fla. Palm Beach Cty. Ct. 2002); USA Diagnostics v. Star Casualty, 8 Fla. L. Weekly Supp. 851 (Fla. Broward Cty. Ct. 2001); The Premier Center for Personal Injuries v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 501 (Fla. Dade Cty. Ct. 2001); Dr. Steven Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458 (Fla. Dade Cty. Ct. 2001) But see, Motion X-Ray, Inc. v. State Farm Mut. Auto. Ins. Co., 10 Fla. L. Weekly Supp. 79 (Fla. Orange Cty. Ct. 2002) (relying upon Hartford Insurance Company of the Southeast v. St. Mary’s Hospital, Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000) and Security National Ins. Co. v. Biotronix Laboratories, Inc., 6Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct., March 12, 1999).

In the face of such law, the Fourth District Court of Appeals refused certiorari review, noting that “Given the plethora of cases uniformly interpreting the statute, we elect not to exercise our discretionary jurisdiction.” Star Cas. v. U.S.A. Diagnostics, Inc., 855 So.2d 251, 253 (Fla. 4th DCA 2003) (dicta).

The single case holding otherwise is Motion X-Ray, 10 Fla. L. Weekly Supp. 79 (Fla. Orange Cty. Ct. 2002). That case constitutes non-binding because it is a county court case. Moreover, the precedents it relies upon are distinguishable. For example, Motion X-Ray relies upon Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000). That case, however, did not concern HCFA Form 1500. Instead, it solely addressed a “Patient Consent and Authorization Form” of which the opinion provides no details. Because Hartford passes judgment on a document unrelated to HCFA Form 1500, it is factually distinct and provides no basis for analogizing between the two forms.

Motion X-Ray also relied upon Security National Ins. Co. v. Biotronix Laboratories, Inc., 6 Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct., 1999). However the issue in Security National concerned an award of attorney’s fees after arbitration and not the need for a countersignature to effect an assignment. The legitimacy of the underlying assignment was addressed in arbitration and was not an issue on appeal. Hence, discussion of the legitimacy of the underlying assignment constituted pure dicta.

As stated by Judge Dresnick in Hialeah Medical Associates, Inc., 9 Fla. L. Weekly Supp. 738 (Fla. 11th Cir., 2002):

In Security National, the provider did not reveal that there was an assignment of benefits until three months after it had filed suit. The court found this action to be a blatant attempt to set up the insurance company for attorney’s fees. . . In the instant case, both parties acknowledge the existence of the assignment and notice of said assignment is not at issue.

In other words, it was the unreasonable, surprise notice of the assignment which raised the ire of the court — not the legitimacy of the assignment itself.

United Auto next argues that trial court abused its discretion in by entering summary judgment in favor of Neurology Associates on the issue of whether the treatment for which reimbursement was sought was reasonable, related to the accident and necessary. Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998).

The standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So.2d 524, (Fla. 3d DCA 2000). A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “[O]nly competent evidence may be considered by the court in ruling upon a motion for summary judgment.” Daeda v. Blue Cross & Blue Shield of Florida, Inc., 698 So. 2d 617 (Fla. 2d DCA 1997).

In this case, the provider submitted the affidavit of the treating physician to establish that the PIP benefits it sought were reasonable, related to the accident and necessary for treatment. To counter the treating physician’s affidavit, United Auto relied upon a letter of from a United Auto claims adjuster. That letter states: “The Independent Medical Examination (IME) physician has advised us that in his/her opinion, any further Medical Treatment would not be reasonable, related or medically necessary.” Such a letter is not competent evidence under Fla. R. Civ. P. 1.510(c). It is neither an affidavit nor filed in response to discovery. Moreover, such letter constitutes rank hearsay as it is not the direct testimony of the Independent Medical Examiner. Instead, it is the testimony of a United Auto employee about the testimony of the Independent Medical Examiner. Finally, the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.

Accordingly, the trial court correctly found that no competent evidence existed to create a question of material fact as to the reasonableness, relatedness and necessity of treatment.

Turning briefly to the issue of attorney’s fees, we hold such fees are appropriate under §627.428(1), Fla. Stat. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000); Magnetic Imaging Systems, I, Ltd. v. Prudential Property & Cas. Ins., 847 So. 2d 987, 989-90 (Fla. 3d DCA 2003); Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502, 502 (Fla. 1st DCA 1974).

On the foregoing, the trial court is AFFIRMED. Appellee is awarded appellate costs and attorney’s fees and the cause is REMANDED to the trial court for a determination of the amount of appellate costs and fees. (MARIA KORVICK, MANUEL A. CRESPO & IVAN FERNANDEZ, JJ., CONCUR.)

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