11 Fla. L. Weekly Supp. 877a
Insurance — Personal injury protection — Coverage — Medical bills — Unreasonable, unnecessary or unrelated medical expenses — No abuse of discretion in entering summary judgment for medical provider on insurer’s affirmative defense that medical services provided were not reasonable, related or necessary where provider offered affidavit of physician attesting that treatment was medically necessary and related to accident and that bill is for customary and reasonable charge, and insurer failed to present its own affidavit or other countervailing evidence — Statutory requirement that insurer first obtain medical report stating treatment was not reasonable, related or necessary before withdrawing payment of PIP benefits does not alter burden of proof in proceeding for summary judgment on issue of reasonableness, relatedness or necessity of treatment — Claim forms — Countersignature by insured — Assigned claim — Insured’s signature is not required on HCFA form where insured has assigned benefits to provider
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, SOL ANGEL HURTADO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-085 AP. L.C. Case No. 2002001369SP25. Opinion filed August 3, 2004.
(Before: JOSE M. RODRIGUEZ, DENNIS J. MURPHY, DAVID C. MILLER, JJ.)
This is an appeal from a final summary judgment entered in favor of the Appellee in an action for the recovery of Personal Injury Protection (PIP) benefits under a policy of insurance issued by Appellant. We affirm.
The facts reflect that on September 8, 2001, Sol Angel Hurtado sustained personal injuries as a result of an automobile accident. At the time of the accident Hurtado was covered under a Personal Injury Protection (PIP) insurance policy issued by Appellant. Thereafter, Hurtado sought medical treatment from Appellee and incurred medical expenses as a result thereof. After accepting an assignment of benefits from Hurtado, Appellee sought payment from Appellant for the treatment it provided to Hurtado. Based on such assignment, Appellee brought suit for the recovery of PIP benefits under the policy issued by Appellant to Hurtado. On November 12, 2002, Appellee moved for final summary judgment on Appellant’s affirmative defense that the medical services provided to Hurtado were not reasonable related or necessary.1 The motion was supported by an affidavit from Dr. Luis Vazquez who concluded that based upon his review of the entire file of Sol Angel Hurtado as it relates to her automobile accident of September 8, 2001, “the medical treatment rendered to Sol Angel Hurtado was medically necessary and related to the injuries that she suffered in the above-mentioned accident and the medical bills from Professional Medical Group, Inc., & Professional Radiology, Inc., in the amount of $7,925.00 is reasonable and what is customarily charged for similar medical services in the community.” On February 10, 2003, the trial court granted appellee’s motion and entered final summary judgment in favor of appellee and against appellant. Appellant appealed from such final summary judgment.
The issue on appeal is whether the trial court abused its discretion by entering final summary judgment for appellee on appellant’s affirmative defense that the medical services provided by appellee were not reasonable, related or necessary. We affirm. 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. BellSouth Telecommunications, Inc., 675 So. 2d 705 (Fla. 3d DCA 1996). We find Dr. Vazquez’s affidavit to have met appellee’s initial burden of establishing the non-existence of an issue of material fact regarding whether the challenged medical treatment was reasonable, related and necessary. The burden then switched to Appellant to demonstrate the existence of such an issue. By failing to present its own affidavit or other countervailing evidence, Appellant has failed to meet its burden of demonstrating the existence of a genuine issue of material fact so as to preclude the entry of summary judgment on its affirmative defense.
Although not dispositive, 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); Reviewed Denied, 735 So. 2d 1289 (Fla. 1999). Contrary to allegations by Appellant, the statutory requirement that an insurer must first obtain the referenced report before electing to withdraw payment, does not alter the burden of proof in a lawsuit for PIP payments. Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1996). 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) and do not call for a different result in this case regarding the appellant’s burden of proof in a proceeding for summary judgment.
Finally, we reject appellant’s argument that the insured’s failure to countersign the Health Care Administration Financing Act 1500 (HCFA) forms relieved and/or discharged appellant’s obligation to pay for the medical services provided by appellee to the insured. 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. Assoc., Inc. v. United Auto. Ins. Co., 9Fla. 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).
Accordingly, it is hereby ORDERED AND ADJUDGED that the Final Judgment on Plaintiff’s Motion for Final Summary Judgment is AFFIRMED.
Furthered ORDERED that appellee’s motion for appellate attorney’s fees is granted with the trial court instructed to fix the amount.
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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. 4th DCA 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.”
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