11 Fla. L. Weekly Supp. 1041a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Directed verdict — Trial court correctly directed verdict in medical provider’s favor where insurer failed to present evidence sufficient to contradict or discredit treating physician’s opinion that treatment was reasonable, related, and necessary — Statutory requirement that insurer have medical report stating treatment was not reasonable, related or necessary as condition precedent to withdrawing payment of PIP benefits does not alter burden of proof in PIP suit — Appellate attorney’s fees awarded to provider
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HIALEAH DIAGNOSTIC CENTER, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-598 AP. Consolidated with 03-052 AP. L.C. Case No. 2002001796SP26. September 14, 2004.
(Before JOSE M. RODRIGUEZ, DENNIS J. MURPHY, DAVID C. MILLER, JJ.)
Appellant appeals from a Directed Verdict in favor of Appellee for the payment of medical bills submitted under a Personal Injury Protection (“PIP”) policy issued by Appellant to Ana Suarez. We affirm.
On July 18, 2001, Ana Suarez sustained personal injuries as a result of an automobile accident. At the time of the accident Suarez was covered under a Personal Injury Protection (PIP) insurance policy issued by Appellant. Thereafter, Suarez sought medical treatment from Appellee and incurred medical expenses as a result thereof. After accepting an assignment of benefits from Suarez, Appellee sent medical bills to Appellant pursuant to Suarez’s PIP policy. Appellant failed to pay the medical bills submitted and as a result Appellee filed a lawsuit against Appellant for the payment of said bills. After several months of litigation, a jury trial commenced on the reasonableness, relatedness and necessity of the medical expenses incurred by Suarez. In its case in chief, Appellee called Dr. Andrew Schmer,1 who testified that each bill submitted to Appellant for payment was reasonable, related and necessary. Although Dr. Schmer was subject to cross examination, appellant offered no medical evidence controverting Dr. Schmer’s testimony. After hearing argument from counsel, the Court granted a directed verdict in favor of Appellee based in part upon the fact that Appellant did not have any form of “reasonable proof” controverting Dr. Schemer’s testimony that the treatment rendered to Suarez for the injuries she sustained in the July 18, 2001 accident were reasonable, related and necessary.
The issue on appeal is whether the trial court properly granted a directed verdict in Appellee’s favor, i.e., whether or not there was sufficient evidence to allow the case to go to the jury as to the reasonableness, relatedness and necessity of the medical expenses incurred as a result of the accident of July 18, 2001.2 The law is clear that the court may direct a verdict for the plaintiff on the issue of liability if the defendant fails to rebut the plaintiff’s evidence on the issue of liability. Darrell v. Charm, 611 So. 2d 69 (Fla. 4th DCA 1992); Medina v. Peralta, 802 So. 2d 376 (Fla. 3d DCA 2001). In order to survive a motion for directed verdict once the plaintiff presents expert testimony to support a claim, the defense must come forward with countervailing evidence or severely impeach the proponent. Id. Based on this standard, we find that trial court properly directed a verdict in Appellee’s favor due to Appellant’s failure to present direct or impeachment evidence sufficient to contradict or discredit Dr. Schemer’s opinion that treatment was reasonable, related and necessary.3
Although not dispositive of our decision, we adhere to the view that under Fla. Stat. 627.736(7)(a),4 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, said statutory requirement, 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 1996). Finally, 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)5 and do not alter the appellant’s burden of proof in a proceeding for directed verdict. Additionally, appellee’s motion for appellate attorney fees is hereby granted.
Accordingly, it is hereby ORDERED AND ADJUDGED that the final directed verdict is affirmed.
__________________
1Dr. Schmer was Suarez’s treating physician and owner of Appellee.
2It is settled law that a plaintiff in a PIP case has the burden to establish 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). Once an insured meets this burden, to escape a directed verdict, the insurer must come forward with at least some “reasonable proof” that payment is not justified. Appellant, here, failed to meet this burden.
3We find that Appellant’s cross examination of Dr. Schemer was not of the type which could be characterized as severely impeaching his testimony on direct and redirect examination.
4Fla. 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.
5Under 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.
* * *
