12 Fla. L. Weekly Supp. 81a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Fraud defense is stricken where insurer has failed to satisfy requirements that it make specific allegations and clearly state facts constituting fraud — Reasonable, related or necessary medical expenses — Medical provider was not required to file sworn testimony from referring physician stating that disputed orthopedic exam was medically necessary and related to accident — Examining physician is qualified to testify to necessity and relatedness of own exam — Service of attachments to affidavits on evening before summary judgment hearing did not prejudice insurer where documents had been in insurer’s possession as early as claim and certainly by time of discovery — Where provider filed affidavits of treating physicians which establish that all treatment was related to accident, reasonable, and necessary; and insurer failed to either substantially impeach medical expert testimony of treating physicians, present countervailing evidence from licensed physician, or establish that provider has not complied with conditions precedent; provider is entitled to summary judgment
CICERO ORTHO-MED CENTER, INC., assignee of David Almeida, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-7308 SP 25 (1). October 29, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Dagmar Llaudy.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., assignee of David Almeida, Motion for Final Summary Judgment, after due notice to the parties, the Court having heard argument of counsel on August 18, 2004, all parties duly noticed, 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 do not appear to exist any genuine issues of material facts regarding the reasonable, related and necessary medical expenses, thereby entitling the Plaintiff to Final Summary Judgment as a matter of law.FINDINGS OF UNDISPUTED FACTS
2. The Plaintiff sued the Defendant on July 15, 2002, 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 December 15, 2001.
3. The Plaintiff sued the Defendant for medical expenses in the amounts $450.00 for date of service January 7, 2002.
4. On or about September 19, 2002, the Defendant filed its Answer and Affirmative Defenses.
5. On April 30, 2004, the Defendant filed Motion to Supplement Answer. The Defendant never set its motion for hearing prior to this hearing.
6. On or about August 11, 2004, the Defendant filed its Motion for Leave to Amend its Affirmative Defenses with proposed Answer and Amended Affirmative Defenses. The Defendant never set its motion for hearing prior to this hearing.
7. As its First Affirmative Defense, the Defendant affirmatively alleges the Plaintiff is in violation of §627.736(5)(a). The Defendant alleges that the Plaintiff failed to have the insured or his/her guardian countersign the HCFA forms as mandated by the statute. As such, the Defendant has not been furnished with notice of the amount of a covered loss or medical bills due to non-compliance with the statute. As such, Defendant is not responsible for the subject medical bills.
8. The Defendant withdrew this defense on August 9, 2004, in its notice to withdraw affirmative defenses served on that day. In addition, the Defendant withdrew this defense at the hearing.
9. The Defendant’s Second Affirmative Defense alleges that pursuant to well-settled principles of contract law, Plaintiff’s alleged assignment of benefits is invalid and unenforceable due to the claimant not giving up all his rights under the alleged assignment and the claimant being held liable for all bills not paid by the insurance carrier.
10. The Defendant withdrew this defense on August 9, 2004, in its notice to withdraw affirmative defenses served on that day. In addition, the Defendant withdrew this defense at the hearing.
11. As the Defendant’s Third Affirmative defense, the Defendant alleges the Plaintiff’s provider submitted fraudulent bills in there were inconsistencies between the services the claimant received and the services the Plaintiff bill for. Mr. Anthony Gregory withdrew this defense at his deposition. (See deposition of Anthony Gregory, p. 11, l. 9).
12. The Plaintiff filed the sworn statement of the claimant, David Almeida, who testified he was in the subject motor vehicle accident on December 15, 2001, described the accident, that he was the driver at the time of the accident, testified he was injured as a result of the accident, described his injuries, testified that he sought medical care and attention for his injuries at CICERO ORTHO. (See sworn statement of David Almeida taken on March 20, 2002, and filed with this Court).
13. The Plaintiff filed the deposition of Anthony Gregory, the litigation adjuster, taken on February 12, 2004. Mr. Gregory is the Defendant’s representative with the most knowledge of the subject PIP claim at this time and is responsible for the handling of the claim.
14. Mr. Gregory stated the Defendant received the Plaintiff’s bill on March 7, 2002, for date of service January 7, 2002, in the amount of $450.00.
15. He testified that the bill was not paid because the bill did not contain the treating physician’s signature or credentials, the claimant reported the loss to the Defendant late, and the bill did not appear to be reasonable, related and necessary.
16. On or about December 15, 2001, David Almeida, was traveling in a motor vehicle that was involved in an automobile accident in Dade County, Florida. According to Mr. Gregory, the loss was reported on December 18, 2001, by the insured, no less than three days after the accident.
17. The Plaintiff filed the affidavits of the treating physician, Dr. Antonio Juan Maza, M.D., and person with the most knowledge of the billing and records from CICERO, Ana Cicero, which establish all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and all of the treatment was related to the subject accident, reasonable and necessary.
18. On August 17, 2004, the Plaintiff served on the Defendant its Notice of Filing documents which were referenced in the affidavits and inadvertently not attached to the affidavits. The Defendant represented to the Court that it requested these documents on August 17, 2004, and the Plaintiff complied with this request. The Court finds that the Plaintiff was not required to attach the medical records of the referring physician since Dr. Juan Maza examined the patient/claimant and testified to his findings in his affidavit.
19. In the instant case, it remains undisputed that the Defendant received medical bills from the Plaintiff in the amount of $450.00 for date of service January 7, 2001. The Defendant argues that the reasonable charge is $280.00 as testified to by Mr. Anthony Gregory. The Plaintiff agreed to accept that amount, therefore, there remains no genuine issue of material fact that there remains due and owing $280.00 times 80% which equals $224.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
20. On August 16, 2004, the Defendant served its Motion to Strike Affidavit of Ana Cicero. The Court denied that motion at the hearing.
21. On August 16, 2004, the Defendant served its Motion to Strike Affidavit of Antonio Juan Maza, M.D. The Court denied that motion at the hearing.
22. On August 16, 2004, the Defendant served its Affidavit of Anthony Gregory. The Court considered this affidavit at the hearing for purposes of ruling on the motion.
23. The Defendant served its Notice of Filing purported Demand Letter and Pre-Suit Notice of Designation on or about August 17, 2004.
24. The Defendant served its Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment on August 17, 2004.
25. The Defendant has failed to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician to dispute the reasonable, related and necessary medical services and expenses.
26. As evidenced by Ana Cicero’s testimony and the deposition testimony of the adjuster, the Plaintiff timely submitted its bills in compliance with Florida Statutes § 627.736 to UNITED AUTOMOBILE along with the medical records, HCFA billing forms and assignment of benefits, and otherwise complied with all conditions precedent.
ISSUES OF LAW
27. In regards to the Defendant’s fraud affirmative defense, the litigation adjuster withdrew this affirmative defense in his deposition. Despite that fact, this Court finds that Florida Rule of Civil Procedure 1.120(b) states in pertinent part, “[I]n all averments of fraud or mistake, the circumstances constituting fraud or mistake should be stated with such particularity as the circumstances may permit”. Fla.R.Civ.Pro. 1.120(b).
28. As long has been the rule in Florida that whenever fraud is relied on, allegations relating thereto should be specific, and facts constituting fraud should be clearly stated, and that position has not been abandoned by the adoption of the Florida Rules of Civil Procedure. Kutner v. Kalish, 173 So.2d 763 (Fla. 3rd DCA 1965). The Defendant has failed to comply with these requirements in this case, has failed to prove fraud as of this date, and this defense should be stricken accordingly and the Court grants the Plaintiff’s Motion for Summary Judgment on this issue.
29. The only remaining issue is the reasonable, related and necessary medical expense incurred by the Plaintiff on January 7, 2002, in the amount of $450.00.
30. 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 Plaintiff as a result of the subject accident.
31. 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.
32. 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).
33. 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.
34. The appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) supports the Plaintiff’s position for a Summary Judgment.
35. Also, United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position.
36. 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).
37. At this hearing, the Defendant argued that the Plaintiff must file sworn testimony from the referring physician stating that the subject orthopedic examination performed by Dr. Antonio Juan Maza was medically necessary. The Court finds that as a matter of law, Dr. Juan Maza is qualified to testify that his own examination was medically necessary and related to the subject accident based on the fact that he took a history from the patient and performed an examination. Further, the affidavit was not conclusory as argued by the Defendant. The Plaintiff is not required to submit the subject referral for the consultation or sworn testimony from the referring physician stating that the subject referral was medically necessary and related to the accident in order for the medical service performed by CICERO ORTHO to be considered medically necessary.
38. The Defendant further argued that the attachments referenced in the affidavit were not served until the evening before the summary judgment hearing. The Court finds based on the Plaintiff’s counsel’s representation at the hearing that it was an oversight and that the Defendant did not suffer any prejudice by receiving these documents the evening before since they had essentially been in the Defendant’s possession as early as the submission of the claim and certainly received during discovery.
39. The Defendant argued that the affidavit of Dr. Antonio Juan Maza was legally insufficient and should not be considered by the Court. The Court finds that as a matter of law the affidavit is self authenticating, sworn to and is based on personal knowledge and the Court will consider this affidavit in making its determination that the subject medical expenses are related to the accident and medically necessary.
40. The Defendant argued that the affidavit of Ana Cicero was legally insufficient and should not be considered by the Court. The Court finds that the affidavit of both Ana Cicero and Dr. Juan Maza are sufficient to establish that the subject medical expenses were reasonable and lawfully rendered.
41. The Defendant does not have any basis under its contract or §627.736(4) or (7) to establish that it is not responsible for the medical expenses in the amount of $280.00.
42. 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.
43. Because there do not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, David Almeida, and submitted to UNITED AUTOMOBILE by the subject provider, CICERO ORTHO-MED CENTER, and the Defendant’s failure to pay the Plaintiff’s medical bills at the reduced amount of $280.00 pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
44. The Plaintiff has 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 reduced to $280.00 at 80% plus interest from 30 days after receipt up to and including the present.
45. The Plaintiff is entitled to Final Summary Judgment in the amount of $224.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
46. 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.
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FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., assignee of David Almeida’s, Motion for Summary Judgment, the Court having heard argument of counsel on 8/18/04 after the parties receiving notice, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, CICERO ORTHO-MED CENTER, INC., assignee of David Almeida, 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 TWENTY FOUR DOLLARS AND ZERO CENTS ($224.00) plus interest in the amount of THIRTY EIGHT DOLLARS AND TWENTY NINE CENTS ($38.29), for a total amount of TWO HUNDRED SIXTY TWO DOLLARS AND TWENTY NINE CENTS ($262.29), 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, 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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