12 Fla. L. Weekly Supp. 1174b
Insurance — Personal injury protection — Coverage — Medical benefits — MRI — Summary judgment entered in favor of provider, as assignee of insured — Civil procedure — Affidavit of insurer’s claims adjuster was untimely and therefore inadmissible for purposes of summary judgment where affidavit was not mailed five days prior to hearing — Notice of accident — Insurer was not prejudiced by twenty-six-delay in reporting accident since insurer did not schedule examination under oath until more than five months after receipt of notice of accident/loss and did not schedule independent medical examination for more than four months after receiving notice of accident/loss — Insurer’s allegation that referring physician committed fraud was not pled with specificity and particularity required by law, and, accordingly, this affirmative defense is stricken — Affidavit of treating/referring physician that MRI at issue was reasonable, medically necessary, and related to subject motor vehicle accident was not substantially impeached by insurer
BISCAYNE DIAGNOSTIC IMAGING LIMITED a/a/o Gary Paul, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-16820 SP 23 (01). September 7, 2005. Myriam Lehr, Judge. Counsel: Craig H. Blinderman and Mary-Margaret Warren, Mrejen Blinderman, P.L., Ft. Lauderdale, for Plaintiff. Thayer Musa and Craig Posner, for Defendant.
ORDER GRANTING PLAINTIFF FINAL SUMMARY JUDGMENT
THIS MATTER having come before the Court on August 9, 2005 on Plaintiff’s Motion for Summary Judgment and the Court, having heard argument of counsel and being fully advised in the premises thereof, makes the following findings:
Procedural history:
1 This is a personal injury protection (“PIP”) action.
2. On March 4, 2005, Plaintiff filed a Motion for Summary Judgment and set the matter for hearing on May 3, 2005. This hearing was rescheduled to May 11, 2005.
3. On May 11, 2005, the Court heard argument of counsel on Plaintiff’s Motion for Summary Judgment.
4. At the May 11, 2005 hearing, defense counsel handed to Plaintiff’s counsel and the Court the affidavit of litigation adjuster Jay Kell. Multiple documents were attached to Mr. Kell’s affidavit including HCFA forms and medical notes from the referring physician (not Plaintiff) and the insured’s examination under oath (“EUO”). Mr. Kell’s affidavit and the documents attached thereto were offered to the Court in opposition to Plaintiff’s Motion for Summary Judgment.
5. Defense counsel proffered to the Court that the affidavit of Mr. Kell with attachments had been mailed to Plaintiff’s counsel on May 6, 2005. Plaintiff’s counsel advised the Court that the affidavit had not been received prior to the May 11, 2005 hearing.
6. Based upon Mr. Kell’s affidavit, the documents attached thereto and the proffer of defense counsel that the affidavit was mailed in accordance with the Rule 1.150(c), F.R.Civ.P., the Court denied Plaintiff’s Motion for Summary Judgment without prejudice.
7. On May 16, 2005, Plaintiff filed a Motion for Rehearing and Motion to Strike Defendant’s Pleadings for Fraud upon the Court.
8. The Court granted Plaintiff’s Motion for Rehearing and scheduled a hearing for August 9, 2005.
9. On August 9, 2005, the Court granted Plaintiff’s Motion for Rehearing and counsel for both parties advised the Court that they were prepared to argue Plaintiff’s Motion for Summary Judgment and Motion to Strike Defendant’s Pleadings for Fraud upon the Court.
Upon hearing argument of counsel an August 9, 2005 on Plaintiff’s Motion for Summary Judgment and Motion to Strike Pleadings for Fraud upon the Court, the Court makes the following findings of fact:
10. The postmark on the original envelope containing the affidavit of litigation adjuster Jay Kell clearly shows that it was mailed to Plaintiff’s counsel on May 9, 2005 and not May 6, 2005 as proffered by defense counsel at the May 11, 2005 hearing on Plaintiff’s Motion
for Summary Judgment.
11. The affidavit of Mr. Kell was untimely and therefore inadmissible for purposes of summary judgment. Rule 1.150(c), F.R.Civ.P., provides that an affidavit opposing a motion for summary judgment must be mailed five (5) days prior to the hearing on same.
12. The affidavit of Mr. Kell and all attachments thereto are stricken. Further, since none of the documents attached to Mr. Kell’s affidavit nor any other documents offered by defense counsel in opposition to Plaintiff’s Motion for Summary Judgment were certified and/or authenticated, they are inadmissible as a matter of law for purposes of summary judgment.
13. Plaintiff’s counsel agreed to withdraw its Motion to Strike the Defendant’s Pleadings for Fraud upon the Court.
14. Defendant’s first affirmative defense alleged that Plaintiff failed to provide written notice as soon as practicable of the alleged loss/accident and as a result, the Defendant was prejudiced by not being able to properly investigate the accident/loss.
15. The subject motor vehicle accident occurred on February 27, 2002. The insured reported the accident to the Defendant on March 25, 2002; twenty-six (26) days after the accident occurred.
16. The MRl at issue was rendered to the insured on June 12, 2002. The Defendant’s own documentation shows Defendant received Plaintiff’s bill for the MRI on June 25, 2002; thirteen (13) days after the MRI was rendered. Plaintiff provided Defendant with written notice of the loss within the time prescribed by F.S.§627.736.
17. The Defendant was not prejudiced by the insured’s or Plaintiff’s notice of the accident/loss. Despite being notified of the accident on March 25, 2002, the Defendant did not schedule an EUO of the insured until September 3, 2002; more than five (5) months after receiving notice of the accident/loss. In addition, the Defendant did not schedule an independent medical examination (“IME”) of the insured until August 5, 2002; more than four (4) months after receiving notice of the accident/loss. The Defendant cannot claim prejudice based upon its inability to investigate the claim at issue when the Defendant waited more than four months after receiving notice of the accident/loss to begin its investigation.
18. The Defendant withdrew its second affirmative defense alleging that Plaintiff’s billing was well above the usual and customary amounts. The MRI at issue is subject to a fee schedule pursuant to F.S. §627.736. Therefore, the issue of usual and customary and/or reasonableness of the MRI charge is not at issue.
19. As its third and final affirmative defense, the Defendant alleged that the referring physician (not Plaintiff) committed fraud. The Defendant’s allegation of fraud is legally insufficient. All elements of fraud were not pled and the underlying facts were not pled with the specificity and particularity required by law. Therefore, this affirmative defense is stricken.
20. On or about March 4, 2005, Plaintiff filed the affidavit of the treating/referring physician, Dr. Michael S. Wendrow. Dr. Wendrow attested that the MRI at issue was reasonable, medically necessary and related to the subject motor vehicle accident.
21. The Defendant failed to either substantially impeach the expert medical testimony of Dr. Wendrow or present countervailing evidence from a licensed physician. Therefore, Plaintiff is entitled to judgment as a matter on the issues of reasonable, related and medically necessary.
22. There are no material issues of fact in dispute in the instant matter. Plaintiff has met its prima facie burden of proof and is therefore entitled to Final Summary Judgment as a matter of law.
It is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final judgment is hereby entered in favor of the Plaintiff, Biscayne Diagnostic Imaging Limited (as assignee of Gary Paul) of 21110 Biscayne Boulevard, Aventura, Florida 33180, and the Plaintiff shall recover from the Defendant, United Automobile Insurance Company, FEI # 65-0415688, the amount of $1032.78 ($645.49 x 200% x 80%) as outstanding PIP benefits and interest in the amount of $281.00 (1124 days) commencing on August 9, 2005 for a total judgment against the Defendant in the amount of $1313.78 which amount shall bear interest at the rate of 7% per annum for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff is entitled to an award of reasonable attorneys’ fees and costs and the Court shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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