12 Fla. L. Weekly Supp. 376a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 485a
Insurance — Personal injury protection — Demand letter — Summary judgment is granted in favor of medical provider on defense of failure to furnish pre-suit demand letter where there is no factual dispute that provider did furnish letter, and provider’s obligation to provide letter dissipated when insurer suspended benefits — Coverage — Medical expenses — Reasonable, related and necessary expenses — There does not exist any question of material fact regarding reasonableness, relatedness and necessity of medical expenses and court grants motion for summary judgment where insurer failed to establish that it had reasonable proof it was not responsible for payment of bills within 30 days of receipt and failed to file properly authenticated and sworn report from physician licensed under same chapter as treating physicians stating no further treatment was medically necessary — Adjuster’s sworn answers to interrogatories referencing hearsay independent medical examination report is insufficient as matter of law to substantiate IME suspension date or otherwise support defense that expenses are not reasonable, related or necessary
CICERO ORTHO-MED CENTER, a/a/o Maria Pineda, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-10738 SP 25(1). January 18, 2005. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Oliver Wragg.
ORDER and FINAL JUDGMENT FOR PLAINTIFF
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, a/a/o Maria Pineda’s, Motion for Summary Judgment heard on December 29th, 2004, after due notice to all parties, 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 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 sued the Defendant for medical expenses in the following amounts: Cicero Ortho-Med Center, d/o/s May 15, 2003 in the amount of $350.00.
3. At the hearing, the Defendant withdrew its third affirmative defense, wherein it alleges the Plaintiff failed to meet all conditions precedent prior to filing suit in that Plaintiff failed to furnish Defendant with statutory notice pursuant to Fla. Stat. 627.736(11). There was no factual dispute that Plaintiff did submit the demand letter prior to filing suit and otherwise complied with all statutory conditions. Additionally, the Defendant suspended benefits on or about 4/16/03, due to an IME. The Plaintiff’s obligation to provide a demand letter pursuant to Fla. Stat. 627.736(11)(a) dissipated when the Defendant-insurer denied coverage for the subject claim.
4. Therefore, the Plaintiff’s Motion for Summary Judgment is GRANTED as it pertains to the Defendant’s affirmative defense regarding failure to furnish the demand letter.
5. As the Defendant’s fourth affirmative defense, it alleges it denied payment for medical expenses incurred subsequent to 4/16/03, as not being reasonable, related and/or necessary based on the opinion of Dr. Henry Kijner.
6. The Defendant failed to file an affidavit from Dr. Henry Kijner or a properly authenticated and sworn to report which supports its fourth affirmative defense. The Court finds that an adjuster’s sworn answers to interrogatories which references the hearsay IME report is insufficient as a matter of law to substantiate the IME suspension date or otherwise support its fourth affirmative defense. Without a sworn affidavit or properly authenticated and sworn to IME report under the penalties of perjury, there is nothing on file to refute the sworn testimony contained in the Plaintiff’s treating physician’s sworn testimony that the subject medical service was reasonable, related and necessary.
7. Further, there is nothing on file or in the record to dispute the sworn testimony of the Plaintiff’s person with the most knowledge of billing that the subject charges are reasonable, usual and customary in the community.
8. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant is responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by Plaintiffs as assignees as a result of the subject accident.
9. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof 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 10% interest.
10. 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 benefits pursuant to Florida Statutes § 627.736(7).
11. The Defendant failed to establish it had reasonable proof it was not responsible for payment of the subject medical bills received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to file a properly authenticated and sworn to report from a physician in the same licensing chapter as one of the treating physicians stating no further treatment was medically necessary as required by § 627.736(7).
12. The Defendant failed to establish that all other charges are not reasonable, related or necessary or the Plaintiffs have not complied with any conditions precedent.
13. Because there does not exist any questions of material fact regarding these related, reasonable and necessary medical expenses incurred by the Plaintiff for these dates of service, and the Defendant’s failure to pay the Plaintiff’s medical bills at full 80% pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Summary Judgment for these medical expenses.
14. As the Defendant’s fifth affirmative defense, it alleges the Plaintiff medical provider lacks standing to bring the current action, in that Plaintiff failed to provide Defendant with a valid assignment of benefits from the claimant and/or insured.
15. The Defendant withdrew this final affirmative defense at the hearing and conceded that the subject assignment of benefits is valid, irrevocable and provides the Plaintiff with standing to file and prosecute the subject lawsuit. Therefore, the Court must grant the Plaintiff’s Motion for Summary Judgment on the issue of standing.
16. 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 its medical expenses at 80% plus 10% interest from 30 days after receipt of each bill up to and including the present.
17. This Court finds that 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.
18. Wherefore, this Court orders that the Plaintiff, CICERO ORTHO-MED CENTER, a/a/o Maria Pineda, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of TWO HUNDRED AND EIGHTY DOLLARS ($280.00) plus interest in the amount of TWENTY SEVEN DOLLARS AND FIFTY SEVEN CENTS ($27.57), for a total amount of THREE HUNDRED SEVEN DOLLARS AND FIFTY SEVEN CENTS ($307.57), 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 CICERO ORTHO-MED CENTER and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
19. 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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