12 Fla. L. Weekly Supp. 984b
Insurance — Personal injury protection — Coverage — Withdrawal — Failure to obtain medical report — Where insurer failed to obtain medical report prior to deciding not to pay claim, medical provider is entitled to summary judgment — No merit to argument that requirement of medical report prior to “withdrawal” of benefits applies only when insurer has decided to pay claim and then later changes its mind
DR. DANIEL M. BARR (a/a/o Derrick Harden), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-6375 COCE 53. July 15, 2005. Robert W. Lee, Judge. Counsel: Robert G. Nichols, Nichols Williams, P.A., Fort Lauderdale, for Plaintiff. Kevin Jones, United Automobile Insurance Company, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 30, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, rules as follows:
At the hearing, the Defendant stipulated that it was withdrawing or no longer disputing all of its defenses except whether the medical treatment rendered to Derrick Harden was reasonable, necessary, and related to the accident occurring on November 25, 2003. In support of Plaintiff’s position that the treatment was reasonable, related, and necessary, the Plaintiff provided the following record:
First, in the deposition transcript attached as Exhibit A to the Motion, Derrick Harden testified that he injured his neck and back as a direct result of the subject accident in this case, and that he received beneficial treatment from Dr. Barr regarding these injuries.
Second, in the Affidavit of Dr. Daniel Barr attached as Exhibit B to the Motion, Dr. Barr stated under oath that:
(a) he has extensive experience diagnosing and treating these types of automobile injuries;
(b) that he obtained a full medical history in this case as part of his diagnosis and treatment of Derrick Harden, which included the fact that he was injured in the subject automobile accident, and that the MRI in this case was reasonable and necessary to diagnose and treat injuries sustained by Derrick Harden related to the motor vehicle accident on 11/25/02;
(c) that he performed a thorough examination and evaluation of Derrick Harden, rendered a diagnosis of his injuries, and prescribed a course of treatment which continued from 12/2/02 through 4/7/03; and
(d) that said treatment was both beneficial to Mr. Harden, as well as being, within a reasonable degree of medical probability, reasonable, related and necessary.
Here, Plaintiff has submitted competent evidence of the services performed, and amounts billed, thereby satisfying its burden of a prima facie showing of reasonableness, relatedness and necessity.
In response, United Auto filed its Affidavit of Gail S. Golden, D.C. dated June 28, 2005, which authenticated a records review dated April 16, 2003. In it, Dr. Golden stated that she is “unable to determine a causal relationship between the November 25, 2002 accident and the chiropractic care to date” due to having an incomplete set of records to review. She specifically objected to three entries on Dr. Barr’s bills as not being reasonable, related, or necessary. However, as for the remaining entries, she concluded that “the patient appears to have received four modalities per office visit which is not excessive and the fees were reasonable, related and necessary. The frequency of the treatment approximated three to four treatments per week is not excessive.” As a result, it appears that Dr. Golden’s affidavit is insufficient to raise a disputed issue of material fact under Rule 1.510(e). Even if it were, however, the peer review report was not timely obtained because it was obtained after United Auto had already decided not to pay the claim.
Under Florida law, PIP benefits are “overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” Fla. Stat. §627.736(4)(b). This 30-day provides the insurer a safe harbor to avoid payment of any penalties, interest and attorney’s fees. However, failure to pay or obtain reasonable proof within 30 days does not operate as a waiver of the insurer’s right to thereafter contest the bills as being unreasonable, not related to the accident, or not medically necessary. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). The problem for the insurer is not the failure to authenticate the claim within 30 days, although it might be the failure to obtain a medical report prior to the withdrawal of PIP benefits in this case. Fla. Stat. §627.736(7). So, while the insurer does not lose its right to contest whether a bill is reasonable, related or medically necessary if it fails to obtain “reasonable proof” within 30 days, it still must obtain a medical report before it can thereafter withdraw benefits. See United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1988). See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente J. concurring); Optima Health & Rehab v. United Automobile Ins. Co., 11Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty. Ct. 2003). The undisputed facts establish that the Defendant has declined to pay the claim. The Defendant argues, however, that the “withdrawal” of benefits requires that the insurer had decided to pay the claim, then later changed its mind. The Court disagrees.
As a result, the Court holds that when the insurer denied the claim, it “withdrew the payment” payable under the P.I.P. policy. Because it did this prior to obtaining the requisite medical report, the Plaintiff is entitled to summary judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Plaintiff shall submit a proposed Final Summary Judgment which conforms to the terms of this Order.
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