11 Fla. L. Weekly Supp. 195a

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 error in denial of motion for directed verdict arguing that there is no evidence that insured was in motor vehicle accident where insurer’s answer, read in light most favorable to medical provider, admitted and did not contest that insured was in motor vehicle accident, and treating physician testified that insured sought treatment for injuries suffered in automobile accident — Appellate fees awarded

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NEUROLOGY ASSOCIATES GROUP, INC., a/a/o Santos Rondy, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. January 13, 2004. Case No. 02-435 AP. L.T. Case No. 01-3094 CC. On appeal from the County Court for Miami-Dade County, Florida, the Honorable Linda Dakis 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.)

(Per Curiam.) Gerardo Rondy was insured by United Automobile Insurance Company. Santos Rondy, while Gerardo Rondy’s passenger, was injured in an accident. Following the accident, Santos Rondy commenced treatment with Neurology Associates Group, Inc. At the same time, Santos Rondy executed an assignment of any PIP benefits to Neurology Associates Group, Inc. In turn, Neurology Associates Group, Inc. submitted claims to United Auto on the statutorily required “HCFA” forms. United Auto denied the claims and Neurology Associates filed suit.

Prior to trial, Neurology Associates filed a Motion for Summary Judgment directed toward United Auto’s affirmative defense claim under §627.736(5)(a), Fla. Stat. (2000), to wit: the failure of Santos Rondy to countersign the HCFA forms. The trial court GRANTED Summary Judgment for Neurology Associates.

At trial, United Auto moved for directed verdict on the basis that Neurology Associates had failed to demonstrate that Santos Rondy was injured in an automobile accident and, accordingly, that the treatment for which payment was claimed was unrelated to any accident. The court reserved on the motion and submitted the case to the jury. After the jury returned a verdict in favor of Neurology Associates, United Auto renewed its motion for directed verdict. That motion was denied. Final Judgment was entered in favor of Neurology Associates on September 17, 2002. United Auto appeals.¹

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., 10Fla. 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., 6 Fla. 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 the trial court abused its discretion by denying a directed verdict in favor of United Auto on the issue of whether the treatment for which reimbursement was sought was reasonable, related to the accident and necessary. Delius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998). Specifically, United Auto argues that there exists no evidence from which one could reasonably infer that the patient of Appellee was ever in a motor vehicle accident. The standard of review when a defendant moves for a directed verdict, is that all evidence and reasonable inferences must be viewed in the light most favorable to the non-moving party. Woods v. Winn Dixie Stores, Inc., 621 So. 2d 710, 711 (Fla. 3d DCA 1993).

Florida Rule of Civil Procedure 1.110(e) provides that allegations in a complaint which are not denied are deemed admitted. Paragraph 9 of both the Complaint and Amended Complaint allege that the “policy was in full force and effect on the date of the accident and provided PIP coverage and medical expense coverage for Plaintiff for bodily injuries sustained in said accident.” United Auto’s Answer “admits to the allegations set for in paragraphs 1 through 4, 8, and 9 and demand strict proof thereof”. (Emphasis added). Viewed in the light most favorable to Neurology Associates, the court infers that United Auto admitted and did not contest that the insured was in a motor vehicle accident.

In addition, Dr. David Robbins — the treating physician — testified at trial that the insured “came to me for injuries that he suffered in an automobile accident.” Dr. Robbins understood the accident “was on 10/6 of 2000.” There was no objection to this testimony. Indeed on cross, United Auto’s attorney’s emphasized this testimony by asking Dr. Robbins “you’ve indicated that in your opinion the treatment that [the insured] received was reasonable and related to this accident; is that correct.” Dr. Robbins replied affirmatively. Again, such evidence, viewed in the light most favorable to Neurology Associates, allows the inference that the insured was involved in the underlying accident.

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 (Fla. 1st DCA 1974).

On the foregoing, the trial court is AFFIRMED. Appellee is awarded appellate costs and attorney’s fees. 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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¹The table of contents in United Auto’s Initial Brief identifies as its second argument whether the trial court abused its discretion by entering summary judgment on the issue of “relatedness.” However the issue actually argued is whether the trial court abused its discretion by denying a directed verdict in favor of United Auto on the issue of “relatedness.”

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