11 Fla. L. Weekly Supp. 619a
Insurance — Personal injury protection — Coverage — Passenger not maintaining PIP coverage on own vehicle — Trial court did not err in entering partial summary judgment in favor of provider/assignee on grounds that passenger’s uninsured vehicle was inoperable where insurer did not contest assertion that vehicle was inoperable — Unreasonable, unnecessary or unrelated medical expenses — However, court did err in entering final summary judgment in favor of provider on grounds that insurer had not raised issue of whether treatment rendered was reasonable, related, and necessary as affirmative defense or in discovery — By granting final summary judgment on reasonableness, relatedness, and necessity of treatment without requiring provider to present any evidence on issue, trial court improperly shifted burden of proof on issue from provider to insurer — Trial court properly denied insurer’s motion for judgment on pleadings, which argued that complaint that did not allege treatment rendered was reasonable, related, and necessary did not allege prima facie case, since PIP statute does not require that provider plead that issue
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. M.D.S. d/b/a D.I.S.C. a/a/o SUSAN KENNEDY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-046 AP. L.C. Case No. 02-4123 SP 23. April 27, 2004. An appeal from the County Court for Miami-Dade County. Counsel: Mark A. Gatica, for Appellant. Cris Boyer, Kate G. Burnett, for Appellee.
(Before ROBERT N. SCOLA, JR., RONALD DRESNICK, LEON M. FIRTEL, JJ.)
(SCOLA, J.)This is an appeal of two orders of the lower court, one which entered a final summary judgment in favor of Appellee, M.D.S. d/b/a D.I.S.C. a/a/o Susan Kennedy (MDS) and the second which denied the Appellant’s (United Auto) motion for judgment on the pleadings. For reasons more fully discussed below, we reverse the order granting final summary judgment in favor of MDS and affirm the order denying United Auto’s motion for judgment on the pleadings.
On August 8, 2001, Susan Kennedy (Kennedy) was involved in an automobile accident and sustained personal injuries. She was a passenger in a vehicle that was insured by United Auto for personal injury protection (PIP) benefits under an automobile insurance policy. Thereafter, she sought medical treatment from M.D.S. d/b/a D.I.S.C. (MDS) and incurred medical expenses. At the time of receiving this medical treatment, Kennedy assigned to MDS her rights to collect PIP benefits. MDS then submitted medical bills in the amount of $4,947.00 to United Auto under the automobile insurance policy. United Auto did not pay the submitted bills within the prescribed time period.
MDS then filed suit against United Auto for payment of the medical bills. In its answer, United Auto asserted as an affirmative defense that Kennedy owned another vehicle that was required to be insured, thus relieving United Auto of responsibility to pay under its PIP policy. MDS later filed a motion for partial summary judgment in which MDS alleged that Kennedy’s other vehicle was inoperable at the time Kennedy obtained coverage on the accident vehicle and, thus, was not required to be insured. United Auto did not contest the assertion that Kennedy’s other vehicle was inoperable.
At the time of the hearing on the motion for partial summary judgment, MDS argued that since the only affirmative defense raised by United Auto was related to the other vehicle of Kennedy, and since United Auto never contested that Kennedy’s medical expenses were reasonable and necessary and related to the accident, it was entitled to a final summary judgment. The lower court entered a final summary judgment against United Auto. United Auto then filed a motion for rehearing which also asserted that United Auto was entitled to judgment on the pleadings due to the fact that the complaint filed by MDS did not allege that the medical expenses incurred were reasonable, necessary or related to the accident and, therefore, did not allege a prima facie case. The motion for rehearing and for judgment on the pleadings was denied by the lower court.
A trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla. 1977). The burden to conclusively prove the nonexistence of a material fact is on the moving party. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); Albelo v. Southern Bell, 682 So.2d 1126,1129 (Fla. 4th DCA 1996). The standard of review when reviewing a lower court’s entry of a final summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). An appellate court therefore examines the record by the same summary judgment standard as the lower court. See Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 32 (Fla. 1977).
We find that the final summary judgment was entered in error since MDS’s motion for partial summary judgment did not allege that her medical expenses were reasonable, necessary and related to the accident. An insurer must pay PIP benefits to a claimant within thirty (30) days of receiving written notice of the loss and amount of the loss. See §627.736(4)(b), Fla. Stat.; Ledesma v. Bankers Ins. Co., 573 So. 2d 1042, 1043 (Fla. 3d DCA 1991). PIP benefits are overdue if not paid within thirty (30) days subjecting the insurer to interest. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000). However, an insurer may still contest the reasonableness or necessity of a claim beyond the thirty day period if it has reasonable proof that it is not responsible for the payment. See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001). This statutory requirement does not alter the burden of proof in a lawsuit for PIP benefits. See Derius v. Allstate Indem. Co., 723 So. 2d 271, 273 (Fla. 4th DCA), rev. denied, 719 So. 2d 892 (Fla. 1998).
It is well established that an insured has the burden of proof in establishing that the PIP benefits it seeks were reasonable, related to the accident and necessary for treatment. See 627.736(1)(a), Fla. Stat.; Derius, 723 So. 2d at 272. This is because in a lawsuit seeking PIP benefits, both reasonableness and necessity are essential elements of an insured’s case. Id. See also State Farm Mutual Automobile Insurance Company v. Sestile, 821 So.2d 1244 (Fla. 2nd DCA 2002); Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031, 1034 (Fla. 2d DCA 2001).
In this case, the record establishes that the final summary judgment entered in favor of MDS was based on two separate grounds: first, that Kennedy’s other vehicle was inoperable at the time of the accident; second, that United Auto did not raise reasonableness, necessity and relation to the accident as an affirmative defense or in its discovery. United Auto is not challenging the first ground. However, MDS would only be entitled to a partial summary judgment on that ground.
As to the second ground, MDS submitted no affidavit, medical report, deposition transcript or other evidence supporting its proposition that the medical treatment was reasonable, necessary or related the accident. By granting a final summary judgment on this issue without requiring MDS to present any evidence, the lower court improperly shifted the burden of proof on this issue from MDS to United Auto.
United Auto contends it is entitled to a judgment on the pleadings as the complaint does not contain any allegation that the medical treatment provided to Kennedy was reasonable, necessary and related to the automobile accident, an element of the Appellees case. In considering a motion for a judgment on the pleadings, all well-pleaded allegations of the opposing party are to be taken as true, and all allegations of the moving party which have been denied are taken as false. See Wilcox v. Lang Equities, Inc., 588 So. 2d 318, 319 (Fla. 3d DCA 1991).
The complaint in this case does not allege that the medical treatment rendered was reasonable, related and necessary. Rather, the complaint merely alleged that Kennedy suffered personal injuries as a result of the automobile accident and that MDS submitted medical bills to United Auto. The complaint then alleges that United Auto then refused to pay for those medical services within thirty days and without any reasonable proof. We find that the PIP statute does not require that MDS plead the issue of reasonable, related and necessary but rather that it prove this issue. As such, the lower court properly denied United Auto’s request for judgment on the pleadings and we affirm the denial of that request.
AFFIRMED IN PART and REVERSED IN PART, and the cause is REMANDED for proceedings consistent with this opinion. (DRESNICK and FIRTEL, JJ., concur.)
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