12 Fla. L. Weekly Supp. 91a
Insurance — Personal injury protection — Standing — Assignment — Validity — Irrevocable assignment is valid — Coverage — Unreasonable, unrelated or unnecessary medical expenses — Deposition of adjuster testifying to peer review doctor’s findings is hearsay that is not considered in ruling on motion for summary judgment — Where 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 — Testimony of adjuster is insufficient to create genuine issue of material fact where affidavit of treating physician attests that all treatments were reasonable, related, and necessary — Summary judgment granted in favor of medical provider
DR. STEPHEN CHASE a/a/o Bernadin Jacques, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 03-14955 CC 25(1). October 15, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. David J. Millheiser.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, DR. STEPHEN CHASE a/a/o Bernadin Jacques, Motion for Final Summary Judgment, the Court having heard argument of counsel on 8/16/04, 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.
FINDINGS OF FACT
2. The Plaintiff sued the Defendant on 12/17/03 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 3/19/03.
3. The Plaintiff sued the Defendant for medical expenses in the amount of $6,995.00 for services provided 3/19/03 through 8/6/03.
4. On or about 1/19/04, the Defendant filed its Answer and Affirmative Defenses.
5. Defendant’s second, third and fifth affirmative defenses (paragraphs 7, 8 and 10) were stricken on 2/5/04.
6. As the Defendant’s first affirmative defense, it alleges the Plaintiff 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 named insured.
7. As the Defendant’s fourth affirmative defense, the Defendant states the policyholder submitted material misrepresentation on his application for insurance, but for which Defendant would not have, in good faith, issued the subject insurance policy, would not have issued at same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the alleged loss. This constitutes a material misrepresentation under 627.409.
8. The Defendant failed to offer any proof of any material misrepresentation as of this date and defense counsel actually withdrew this affirmative defense at the hearing.
9. Additionally, the Defendant’s adjuster, Lisa Sanchez, testified in her deposition material misrepresentation is not an issue. (See deposition of Lisa Sanchez, p. 18-19, taken on 5/4/03 and filed with the Court).
10. The Plaintiff’s medical expenses are reasonable, related and necessary. The Plaintiff filed affidavits of the treating physician and person with the most knowledge of the billing and records from Dr. Stephen Chase’s office (Dr. Stephen Chase), which establish that 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 medically necessary.
11. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Lisa Sanchez, taken on 5/4/04. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
12. Ms. Sanchez testified the Defendant received a notice of initiation of treatment letter from DR. CHASE on 4/9/03 and received bills from DR. CHASE on 5/29/03 for dates of service 3/19/03 through 5/23/03 in the amount of $4,455.00.
13. Ms. Sanchez testified the Defendant next received bills from DR. CHASE on 6/30/03 for dates of service 5/28/03 through 6/21/03 in the amount of $1,310.00.
14. Ms. Sanchez testified the Defendant next received bills from DR. CHASE on 7/24/03 for dates of service 6/25/03 through 7/16/03 in the amount of $905.00.
15. Ms. Sanchez testified the Defendant next received bills from DR. CHASE on 8/19/03 for date of service 8/6/03 in the amount of $325.00.
16. Ms. Sanchez testified that she had no idea what the usual and customary amount would have been for these bills and that the Defendant never suspended Mr. Jacques’ benefits.
17. Ms. Sanchez also testified Neil Fleischer, DC, performed a peer review of the claimant’s medical records/bills on 12/22/03, however, the Defendant failed to file an Affidavit from Dr. Fleischer or a sworn and/or certified copy of the Peer Review with the Court. Therefore, the Court never considered this “alleged” Peer Review at the hearing.
18. As of this date, the Defendant has either failed to prove any facts to support its defenses or rebut the Plaintiff’s prima facie case on the issue of reasonable, related and necessary.
19. In the instant case, it remains undisputed that the Defendant received medical bills from the Plaintiff in the amount of $6,995.00 for date of service 3/19/03 through 8/6/03. There remains due and owing $6,995.00 times 80% which equals $5,596.00 minus the $2,000.00 which equals $3,596.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
20. UNITED AUTOMOBILE did not file anything in opposition to the Plaintiff’s Motion for Summary Judgment, but instead, relied upon the deposition testimony of its adjuster. The adjuster did not testify to an amount that was reasonable and necessary, but rather, testified to the Peer Review doctor’s findings. This Court finds that this testimony is hearsay and does not consider it accordingly when ruling on this motion.
21. 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.
22. As evidenced by Dr. Stephen Chase’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
23. The subject assignment of benefits is valid, irrevocable and provides the Plaintiff with standing to file and prosecute the subject lawsuit. (A true and correct copy of the subject Assignment of Benefits is attached as an exhibit to the Complaint).
24. 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.
25. 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.
26. 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).
27. 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.
28. The appellate case 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) further supports the Plaintiff’s position for a Summary Judgment. In Cabello, the injured insured obtained treatment from the appellee-plaintiff who submitted claims to United Automobile. The trial court granted summary judgment in favor of the plaintiff on the issues of countersignature and whether the treatment was reasonable, related and necessary. The plaintiff submitted the affidavit of the treating physician to establish the benefits sought were reasonable, related and necessary. United Automobile submitted letter from a claims adjuster stating the IME physician felt the treatment was not reasonable, related or necessary. The appellate court affirmed the entry of summary judgment and stated, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.”
29. Also, United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position. In Mendoza, the insured sustained injuries in an automobile accident on 3/25/01. Thereafter he obtained treatment from various providers who submitted claims to United Automobile. The plaintiff sued to recover the PIP benefits and moved for summary judgment. The plaintiff filed an affidavit of a medical doctor who concluded treatment provided to the insured was reasonable, related and necessary to injuries sustained as a result of the subject accident. The trial court granted summary judgment in favor of the plaintiff.
30. The defendant appealed claiming the trial court abused its discretion in granting summary judgment. The appellate court affirmed the entry of summary judgment finding once the plaintiff successfully met its burden of establishing the non-existence of an issue of material fact, the burden switched to the defendant to demonstrate the existence of such an issue. The appellate court determined the defendant failed to meet its burden. The defendant did not file an affidavit or any other countervailing evidence to refute the medical treatments as being reasonable, related and necessary. The appellate court also found the deposition testimony of the defendant’s adjuster concerning the IME physician’s report failed to create a genuine issue of material fact.
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). In Williamson, the plaintiffs challenged a final judgment in favor of the defendant insurance company in a personal injury action. The issue on appeal dealt with whether the trial court erred in denying the plaintiffs’ motion for a directed verdict on the issue of permanent injury. The injured plaintiff stated at trial he sustained a back injury several years prior to the subject automobile accident. Those injuries resolved shortly after the injury, but resurfaced following the subject crash. The plaintiffs offered testimony of three physicians on the issue of permanency of the plaintiff’s injuries and that these injuries resulted from the subject accident. The defendant presented two physicians who failed to refute the plaintiffs’ experts’ findings. The trial court denied the plaintiffs’ motion for directed verdict on the issue of permanency and the jury found the plaintiff did not sustain a permanent injury. A motion for retrial was denied.
32. The appellate court’s opinion discussed the standard for surviving a motion for directed verdict when faced with uncontroverted medical testimony. The appellate court stated a party opposing a motion for directed verdict must come forward with either countervailing evidence of the permanency issue or must severely impeach the proponent’s expert. The court further determined a jury is not free to reject the uncontroverted medical testimony indicating a permanent injury. Vega v. Travelers Indemnity Co., 520 So.2d 73 (Fla. 3d DCA 1988).
33. 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 $6,995.00.
34. 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.
35. Because there does not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Bernadin Jacques, and submitted to UNITED AUTOMOBILE by the subject provider, DR. STEPHEN CHASE, 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, the Plaintiff is entitled to Summary Judgment.
36. 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 at 80% minus the deductible plus interest from 30 days after receipt of each bill up to and including the present.
37. The Plaintiffs are entitled to Final Summary Judgment in the amount of $3,596.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
38. 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, DR. STEPHEN CHASE a/a/o Bernadin Jacques’s, Motion for Summary Judgment, the Court having heard argument of counsel on 8/16/04 and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, DR. STEPHEN CHASE a/a/o Bernadin Jacques, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of THREE THOUSAND FIVE HUNDRED AND NINETY SIX DOLLARS ($3,596.00) plus interest in the amount of TWO HUNDRED SIXTY FOUR DOLLARS AND SIXTEEN CENTS ($264.16), for a total amount of THREE THOUSAND EIGHT HUNDRED SIXTY DOLLARS AND SIXTEEN CENTS ($3,860.16), 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 DR. STEPHEN CHASE 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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