12 Fla. L. Weekly Supp. 89a
Insurance — Personal injury protection — Civil procedure — Insurer’s reply to motion for summary judgment served one business day before motion hearing and affidavits of medical experts served on day of hearing are stricken as untimely served where insurer did not demonstrate that delay in service was excusable — Coverage — Reasonable, related or necessary medical expenses — Where medical provider presented affidavits of treating physician and insured to establish that medical expenses were reasonable, related, and necessary; insurer’s reply and affidavits have been stricken; and insurer has failed to establish that it had reasonable proof that it was not responsible for payment of medical bill within 30 days and failed to obtain report from physician in same licensing chapter as treating physicians stating no further treatment was medically necessary, all outstanding bills remain due and owing — Even if police report attached to insurer’s reply were considered, insured’s statements to police officer regarding subjective complaints are inadmissible hearsay — If statements were admissible as exception to hearsay rule, subjective statements regarding injuries at time of police report fail to create genuine issue of material fact regarding whether medical expenses were reasonable, related, and necessary — Summary judgment granted in favor of provider
ASCLEPIUS MEDICAL, INC., a/a/o Juan D. Machado, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-8161 CC 25 (1). October 6, 2004. Final Judgment. October 6, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Nick Babinsky.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard after due notice to the parties, on Monday, September 27, 2004, on Plaintiff’s, ASCLEPIUS MEDICAL, INC., a/a/o Juan D. Machado’s, Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law.
2. The Plaintiff’s Ore Tenus Motion to Strike Defendant’s Reply to Plaintiff’s Motion for Summary Judgment is Granted, as Defendant served said Reply on the Plaintiff’s counsel on Friday, September 24, 2004, less than one business day before the hearing and it was therefore served untimely.
3. The Plaintiff’s Ore Tenus Motion to Strike Defendant’s Notice of Filing Affidavit of Dr. Herry Kijner is Granted, as Defendant served said Affidavit on the Plaintiff’s counsel on September 27, 2004, and it was therefore served untimely.
FINDINGS OF UNDISPUTED FACT
4. The Plaintiff sued the Defendant on July 21, 2003, alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on November 27, 2002.
5. The Plaintiff sued the Defendant for services medical expenses in the amount of $8,790.00, for services provided December 3, 2002 through May 30, 2003.
6. On or about August 20, 2003, the Defendant filed an Answer and Affirmative Defenses to the Complaint.
7. As the Defendant’s first and only affirmative defense, it alleged pursuant to Fla.Stat. 627.736 and Defendant’s policy of insurance, Defendant is responsible for reasonable expenses for necessary medical, surgical, x-ray, dental and rehabilitative services related to the subject accident. Defendant denied payment for medical expenses incurred subsequent to February 7, 2003, as not being reasonable and/or necessary based on the opinion of Herry Kijner, MD, and Robert Hochfelder, DC.
8. Because the Court did not consider Defendant’s Reply to Plaintiff’s Motion for Summary Judgment, and all attachments the Court did not consider the IME reports (of Herry Kijner, MD and Robert Hochfelder, DC) attached to Defendant’s Reply.
9. According to the litigation adjuster, Arian Alvarez, the applicable suspension date for PIP benefits in this case is March 31, 2003, based upon a letter sent to the insured on March 24, 2003.
10. The Plaintiff filed the deposition transcript of Juan Machado taken on November 5, 2003. Mr. Machado testified he was in the subject accident, operated his motor vehicle, that his motor vehicle was insured by United Automobile Insurance Company, that he was injured as a result of the accident, that he sought medical care and treatment at Asclepius Medical Center for his injuries, that he underwent x-rays, and that his injuries improved as a result of the treatment he received.
11. The Plaintiff filed the affidavit of the treating physician, Miguel Cortes, DC. Dr. Cortes testified all of the treatment was reasonable, related and necessary for injuries the claimant sustained in the November 27, 2002, accident.
12. The Plaintiff filed an affidavit of the owner, Miguel Betancourt, who is the person with the most knowledge of the billing of the subject medical facility where Juan Machado sought and received all of his treatment as a result of the subject accident. According to this affidavit, all of the persons who treated Mr. Machado were properly licensed, the clinic had all proper licenses, and these charges are reasonable, usual and customary in the community and are the same charges that would have been charged if Mr. Machado did not have PIP insurance. Further, all bills were timely submitted and in compliance with Florida Statutes § 627.736.
13. Additionally, the Plaintiff filed the deposition of the Defendant’s adjuster, Arian Alvarez, taken on November 5, 2003. Mr. Alvarez is the litigation adjuster for Mr. Machado’s claim and the person with the most knowledge of the claim.
14. Mr. Alvarez testified the Defendant received a notice of initiation of treatment letter from the Plaintiff on December 26, 2002.
15. According to Mr. Alvarez, the Defendant received medical bills from the Plaintiff on January 20, 2003, for dates of service December 2, 2003, through January 6, 2003, in the amount of $4,020.00.
16. According to Mr. Alvarez, the Defendant received medical bills from the Plaintiff on January 28, 2003, for dates of service January 9, 2003, through January 25, 2003, in the amount of $1,685.00.
17. According to Mr. Alvarez, the Defendant received medical bills from the Plaintiff on February 27, 2003, for dates of service January 28, 2003, through February 21, 2003, in the amount of $2,405.00.
18. At the hearing on Plaintiff’s Motion for Summary Judgment, the Plaintiff withdrew medical bills for dates of service February 26 and 27, 2003, May 30, 2003, and July 2, 2003, which total $935.00.
19. On September 24, 2004, the Defendant served Plaintiff’s counsel (via facsimile) its Reply to Plaintiff’s Motion for Summary Judgment. Said Reply included:
a. The subject Florida Traffic Crash Report;
b. The sworn statement of Juan Machado taken on February 19, 2003;
c. A “peer review” by Peter Millheiser, MD, dated, October 17, 2003;
d. An IME report by Robert Hochfelder, DC, dated, February 10, 2003;
e. An IME report of Herry Kijner, MD, dated February 7, 2003;
f. An affidavit of Defendant’s litigation adjuster, Arian Alvarez, dated September 24, 2004; and,
g. The deposition transcript of Juan Machado taken on November 5, 2003.
20. Since the Defendant failed to timely serve its Reply to Plaintiff’s Motion for Summary Judgment, the Court refuses to consider it for purposes of summary judgment.
21. In the instant case, there remains due and owing $8,790.00 minus $935.00 which equals $7,855.00 times 80% which equals $6,284.00, minus the $2,000.00 deductible, which equals $4,284.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
22. The Defendant failed to establish it had reasonable proof it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding bills remain due and owing plus 10% interest from 30 days after receipt of each bill up to and including the present date.
23. The Defendant has no basis under its contract or §627.736(4) or (7) to establish it is not responsible for these bills at full 80% of the owed charges.
24. Because there do not exist any questions of material fact regarding the Defendant’s failure to pay the Plaintiff’s medical bills pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Summary Judgment.
25. The Plaintiff complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgement as a Matter of Law regarding payment of the subject bills in the amount of $4,284.00 plus 10% interest from 30 days after receipt of each bill up to and including the present.
ISSUES OF LAW
26. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
27. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
28. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes § 627.736(7).
29. The Defendant has failed to establish that it had reasonable proof that it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter as the treating physicians stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding medical expenses remain due and owing plus interest from 30 days after receipt of each bill up to the present.
30. The appellate cases of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) and United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004) support the Plaintiff’s Motion for Summary Judgment.
31. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992).
32. The Defendant has no basis under its contract or §627.736(4) or (7) to establish it is not responsible for the medical expenses in the amount of $4,284.00.
33. The Defendant has failed to establish that the subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
34. Because there do not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Juan Machado, and submitted to UNITED AUTOMOBILE by the subject provider, ASCLEPIUS MEDICAL, and the Defendant’s failure to pay the Plaintiff’s medical bills in the amount of $4,284.00 pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
35. The Court will not consider the Defendant’s Reply to Plaintiff’s Motion for Summary Judgment as the Defendant failed to timely serve it upon Plaintiff’s counsel.
36. The hearing on Plaintiff’s Motion for Summary Judgment occurred on Monday, September 27, 2004.
37. The Defendant failed to serve its Reply upon Plaintiff’s counsel until Friday, September 24, 2004, when it did so via facsimile.
38. Pursuant to F1a.R.Civ.P. 1.510(c), the Defendant failed to serve its Reply by 5:00 p.m., two business days prior to the hearing.
39. Further, pursuant to Independent Fire Insurance Co. v. Rogers, 580 So.2d 229 (Fla. 3d DCA 1991), the Court finds the Defendant did not demonstrate that the delay in serving the Reply was excusable.
40. In Rogers, the trial court entered summary judgment in favor of the plaintiff. Three days prior to the summary judgment hearing, the defendant-appellant served via mail an affidavit in opposition to the plaintiff’s motion for summary judgment. At the hearing, the plaintiff objected to the defendant’s affidavit as untimely. After permitting the parties ten (10) days to file a memoranda of law on the issue, the trial court sustained the plaintiff’s objections and struck the defendant’s affidavit. The defendant argued, inter alia, the delay was excusable because its attorney had a death in the family. The court then entered summary judgment in favor of the plaintiff. On appeal, the Third District Court of Appeals held the trial court did not abuse its discretion in finding that the affidavit filed by the defendant was untimely.
41. In the instant case, the Defendant argued the Court should consider its Reply pursuant to Silva v. Hernandez, 612 So.2d 1377 (Fla. 1993). The Court finds the facts of the instant case distinguishable from those in Silva. In Silva the Court interpreted 1.510(c) (1992) before the amendment in 1992 which now requires the non-moving party to serve an affidavit in opposition to summary judgment two business days prior to the hearing.
42. Even if the Court were to consider the police report which was attached to the Defendant’s reply, the Court finds that statements from the claimant to the police officer concerning his subjective complaints are inadmissible hearsay. Even if the statements contained in the police report were found to be admissible as an exception to the hearsay rule, the subjective statements regarding the claimant’s injuries at the time the report was made fail to create a genuine issue of material fact regarding whether the subject medical services were reasonable, related and necessary. Further, the amount of property damage listed by the investigating office is rank hearsay unsupported by any evidentiary foundation and even if considered, fails to create a genuine issue of material fact regarding whether the subject medical services were reasonable, related and necessary.
43. The Plaintiff complied with all conditions precedent prior to instituting this lawsuit, and is entitled to Judgment as a Matter of Law regarding payment of the subject bills in the amount of $4,284.00 plus interest from 30 days after receipt of each bill up to and including the present.
44. The Plaintiff is entitled to Final Summary Judgment in the amount of $4,284.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
45. This Court finds the Plaintiff is entitled to attorney’s fees and costs pursuant to §§ 627.736 and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly.
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FINAL JUDGMENT
THIS CAUSE having come to be heard after due notice to the parties, on Monday, September 27, 2004, on Plaintiff, ASCLEPIUS MEDICAL, INC., a/a/o Juan D. Machado’s, Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, ASCLEPIUS MEDICAL, INC., a/a/o Juan D. Machado, hereby recovers from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of FOUR THOUSAND TWO HUNDRED EIGHTY FOUR DOLLARS ($4,284.00) plus interest in the amount of FOUR HUNDRED THIRTY SEVEN DOLLARS AND NINETY FOUR CENTS ($437.94), for a total amount of FOUR THOUSAND SEVEN HUNDRED TWENTY ONE DOLLARS AND NINETY FOUR CENTS ($4,721.94), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to ASCLEPIUS MEDICAL, INC. and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
2. This Court reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiff, and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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