12 Fla. L. Weekly Supp. 970a
Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary treatment — Failure to obtain medical report within 30 days — Strict interpretation of PIP statute to require physician’s report as condition precedent only when benefits are withdrawn, but not when claim is outright denied, leads to ridiculous result and defeats purpose of PIP statute — Insurer is barred from denying coverage based on physician’s record review in absence of an independent medical examination and where review fails to account for IME examiner’s findings — Where insurer failed to obtain valid physician’s report within 30 days of receipt of claim, insurer waived right to present countervailing expert testimony from a physician in opposition to treating physician’s affidavit attesting to reasonableness, relatedness and necessity of treatment but may still contest claim through other defenses or substantially impeach treating physician — Because insurer failed to obtain physician’s report within 30 days of claim, that report was peer review without IME, insurer has not produced other proof of non-compensability, and insurer has voluntarily withdrawn affirmative defenses, peer review report and affidavit are stricken and final summary judgment is entered in favor of medical provider — Questions certified
EDUARDO J. GARRIDO, D.C., P.A., as assignee of Blanca Milian, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 03-4907 SP 26 (4). July 12, 2005. Philip Cook, Senior Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., for Plaintiff. Oliver Wragg, Office of General Counsel, for Defendant.
FINAL SUMMARY JUDGMENT AND CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE [12 Fla. L. Weekly Supp. 372a]
THIS CAUSE came to be heard on this 12th of July 2005 on Plaintiff’s motion for entry of final summary judgment. The Court upon being advised of Defendant’s voluntary withdrawal of its remaining affirmative defense of late notice, hereby revises its prior ruling on January 21st, 2005 granting Plaintiff’s motion for summary judgment on reasonable, necessary and related and makes the following findings of fact and law:
FINDINGS OF FACT
1. This is a breach of contract action for personal injury protection benefits.
2. At all times material, Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereafter “insurer”) and Blanca Milian entered into a contract of insurance for personal injury protection benefits.
3. Blanca Milian was involved in a motor vehicle accident on August 15th, 2002.
4. As a result of said accident, Ms. Milian suffered injuries that necessitated health care treatment.
5. Following said accident, Ms. Milian sought chiropractic treatment with Plaintiff, DR. EDUARDO J. GARRIDO, D.C., P.A.
6. While under the supervision of Dr. Garrido D.C., Ms. Milian received a number of treatment services which were as follows: ultrasound; chiropractic manipulation; hot/cold packs; traction.
7. Plaintiff submitted to the insurer the sum of $5,690.00 in chiropractic expenses for said services. The insurer did not pay said expenses in accordance with said contract of insurance.
8. During the time Ms. Milian was under the care of Dr. Garrido D.C., the insurer did not request that Ms. Milian submit to an independent medical examination pursuant to Fla. Stat. § 627.736(7).
9. Plaintiff then filed the instant breach of contract suit against the insurer for failure to cover eighty percent of said expenses in accordance with said policy of insurance.
10. Prior to the lawsuit, the insurer did not advise Ms. Milian or Plaintiff that coverage was denied on the basis that a physician has opined that treatment is not necessary, reasonable nor related.
11. During the course of litigation, the insurer raised numerous affirmative defenses which have now been withdrawn.1 Thus, the only remaining issue within the pleadings is whether the chiropractic services are reasonable, necessary and related.
12. Plaintiff moved for summary judgment on reasonable, necessary and related.
13. In support of Plaintiff’s motion for summary judgment, Plaintiff served the affidavit of the treating physician, Dr. Eduardo J. Garrido D.C., who opines that the subject chiropractic care is reasonable, necessary and related.
14. In response to Plaintiff’s motion, Defendant served an affidavit and a peer review from Dr. Neil Fleischer D.C., a chiropractic physician, as countervailing evidence to rebut the opinion of the treating physician.
15. The affidavit of Dr. Fleischer D.C., simply authenticates his report regarding his review of the insured’s medical records. The report was generated on December 11th, 2003; i.e., approximately one year after the subject bills were submitted.
16. Based on the Court’s prior ruling, the affidavit of Dr. Fleischer is insufficient to create a genuine issue of material fact for the affidavit is conclusory and the attached ‘peer’ review, although authenticated, is inadmissible hearsay.
17. Despite the insufficiency of the insurer’s countervailing evidence, the Court will re-address the substantive legal issue this case presents for the purpose of a better record of the legal arguments and analysis for appellate review.
CONCLUSIONS OF LAW
In response to the countervailing evidence of the insurer, Plaintiff’s counsel moved ore tenus to strike Dr. Fleischer’s report and opinion. Plaintiff argues that Dr. Fleischer’s report is invalid under § 627.736(7)(a), Florida Statutes, (2001) because said report is a records review that is unsupported by an IME examiner’s findings. Secondly, Plaintiff argues that Dr. Fleischer’s report is untimely under § 627.736(7)(a); therefore, the insurer may not buttress the original basis of an ‘out-right’ denial, i.e., no payment whatsoever, where the insurer produced said report after rejecting coverage. Plaintiff argues that the effect of the insurer’s failure to comply § 627.736(7) results in waiver of a PIP insurer’s right to present countervailing expert testimony from a physician.
Plaintiff’s argument with regard to the invalidity of Dr. Fleischer’s report is supported by the plain meaning of the statute. Section 627.736(7)(a), Florida Statutes, (2001)defines a valid report as “one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” Id. (emphasis added) The legislature’s prerogative to use the term“and”instead of “or” before the phrase “is factually supported by the examination” issignificant for the term is defined by the dictionary as “[t]ogether with or along with; also; in addition; as well as.” American Heritage Dictionary, 49 (1976) (emphasis added); See L. B. v. State, 700 So.2d 370, 371 (Fla. 1997) (A court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term.) The plain meaning of “and” clarifies that the legislature intended that a medical records review must be supported by the examination findings from the IME physician; therefore, the effect of the legislative amendment to § 627.736(7)(a) is that it bars the insurer from denying coverage based on a physician’s record review absent an IME and where such review fails to account for the IME examiner’s findings.
The term “examination” in the phrase “and is factually supported by the examination” may not be construed as the examination performed by the treating physician or provider. A phrase must be viewed in the context of the entire statutory section. Jones v. ETS New Orleans Inc., 793 So.2d 912, 914 (Fla. 2001) (“[S]tatutory phrases are not to be read in isolation, but rather within the context of the entire section.”) (emphasis added) (citation omitted). Reading §
627.736 as a whole, the Court finds the term “examination” is mentioned in § 627.730(5)(c) and § 627.736(7) in a separate distinct context. Under subsection five (5), which governs billing charges for treatment of injured persons, “examination” is mentioned twice in the context of the examination performed by the provider:
“[T]he insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement . . . .”
* * *
“With respect to any treatment or services, other than certain hospital and emergency services, the statement of charges furnished by the provider may not include charges for and the insurer and the injured party are not required to pay treatment or services rendered more than 35 days days before the postmark date of the statement, except for past due amounts previously billed on a timely basis, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement.”
See §§ 627.736(5)(c)(1) & 627.736(5)(c)(4) (emphasis added)
However, the plain language of § 627.736(7)(a)-(b), which governs independent medical examinations at the request of the insurer, mentions the term “examination” several times in the context of the examination performed by the IME examiner:
“(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. Such examination shall be conducted within the municipality where the insured is receiving treatment, or in a location reasonably accessible to the insured, which, for purposes of this paragraph, means any location within the municipality in which the insured resides, or any location within 10 miles by road of the insured’s residence, provided such location is within the county in which the insured resides. If the examination is to be conducted in a location and if there is no qualified physician to conduct the examination in a location reasonably accessible to the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits. An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examinationand treatment records if reviewed and that has not been modified by anyone other than the physician. The physician preparing the report must be in active practice, unless the physician is physically disabled. Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school or accredited residency program or a clinical research program that is affiliated with an accredited health professional school or teaching hospital or accredited residency program. The physician preparing a report at the request of an insurerand physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection, or on behalf of an insured through an attorney or another entity, shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examination and reports . . . .” (emphasis added)
“(b) If requested by the person examined, a party causing an examination to be made shall deliver to him or her a copy of every written report concerning the examination rendered by an examining physician, at least one of which reports must set out the examining physician’s findings and conclusions in detail . . . If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.”(emphasis added)
Unlike § 627.736(5)(c)(1)(4), the term “examination” under § 627.736(7)(a) is not mentioned in the context of an examination performed by the treating doctor or health care provider. The plain language of § 627.736(7)(a)-(b) is clear: the term “examination” refers to the examination by the IME examiner and not the health care provider or treating physician. If the legislature intended that the term “examination” under § 627.736(7)(a) shall also refer to a treating physician’s examination, it will know how to express itself as evident by the phraseology under § 627.736(5)(c)(1)(4).
Legislative history supports the conclusion that the phrase “and is factually supported by the examination” refers to the examination performed by the IME examiner and that a records review unsupported by an IME examiner’s findings is invalid. Although the § 627.736(7)(a) is clear and unambiguous, legislative history may be used to support a construction of a clear and unambiguous statute. See e.g. Hawkings v. Ford Motor Corp., 748 So.2d 998 (Fla. 1999) (Using legislative history to support an interpretation of an unambiguous statute). Section 627.736(7)(a) was amended in 2001 for the purpose of defining a valid report. See Laws 2001, C. 2001-271 § 6, eff. June 19th, 2001. The Court must “assume that the legislature by the amendment intended it to serve a useful purpose.” Arnold v. Shumpert, 217 So.2d 116, 119 (Fla. 1968) (citation omitted). “When a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment.” Id. The senate staff analysis report for senate bill 1092 states that the legislative purpose of amending § 627.736(7)(a) is to“help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary.” See Senate Staff Analysis & Economic Impact Statement, dated March 26th 2001, Senate Bill 1092 (emphasis added).
It is a well settled proposition of statutory construction, that Courts should give appropriate effect to a statutory amendment. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 364 (Fla. 1978) citing 30 Fla.Jur. Statutes, at 97. Therefore, the Court must give effect to the amended language under § 627.736(7)(a) where it defines a valid physician’s report and honor its purpose; i.e., to bar the insurer from denying coverage based on a physician’s report that merely reviews the insured’s treatment records;moreover, even if the phrase “and is factually supported by the examination” issubject to more than one meaning, legislative history of § 627.736(7)(a) settles the question in favor of the insured. See Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla. 2000) (“When the statutory language is susceptible to more than one meaning, legislative history may be helpful in ascertaining legislative intent.”) (citation omitted) (emphasis added).
Plaintiff’s argument, i.e., Dr. Fleischer’s report is untimely under § 627.736(7)(a), is supported by the plain meaning of the statute. Section 627.736(7)(a) states in relevant part that “[a]n insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician . . . stating that treatment was not reasonable, related, or necessary.” (emphasis added). In the present matter, the Plaintiff presented prima facie evidence that the subject bills were covered medical expenses. After Plaintiff filed suit and approximately one year after bills were first submitted, the insurer produced Dr. Fleischer’s report; thus, the insurer is placing the “cart before the horse.” See also Viles, 726 So.2d at 320.
The insurer argues that § 627.736(7)(a) is inapplicable for the insurer did not “withdraw” payment since it never begun payment; a denial of payment is governed by § 627.736(4) and not by § 627.736(7)(a). The insurer argues the plain language of § 627.736(4) contains no condition precedent to a denial of payment; thus, the Third District’s ruling in Viles isdistinguishable for Viles did not address a denial of coverage but rather, a withdrawal and termination of a previously covered claim which is strictly governed by § 627.736(7)(a).
The plain meaning of “withdraw” under § 627.736(7)(a) supports the insurer’s argument. See Rollins, 761 So.2d at 298 (A statutory term must be given its plain and ordinary meaning.) The plain and ordinary meaning of “withdraw” is “to remove from consideration or participation.” American Heritage Dictionary, 2050 (3rd Ed. 1992) (emphasis added). Therefore, the outcome is dispositive on the Court’s reading of “withdraw” under § 627.736(7)(a). Plaintiff asserts the Court must apply the absurdity canon of statutory construction because a strict reading of “withdraw” willlead to a ridiculous result; the plain meaning of “withdraw” inaccurately reflects the legislature’s intent; therefore, a departure from the plain meaning of “withdraw” is warranted.2 Plaintiff also argues that the PIP statute, although in derogation of the common law, is a remedial statute which must be liberally construed in favor of the insured to advance the remedy sought by the legislature: i.e., coverage for the insured.3 See Viles, 726 So. 2d at 321 (“[S]tatutory provisions under Florida’s no fault laws will be construed liberally in favor of the insured.”) (citation omitted); See also Irven v. Dept. of Health & Rehabilitative Services, 790 So.2d 403 (Fla. 2001) (When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent; the statute should be construed liberally in order to give effect to the legislation.)
It is recognized that on occasion, that a literal interpretation of a statutory term need not be given when to do so leads to an unreasonable or ridiculous result. Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). A departure from the letter of the statute is sanctioned only where there are cogent reasons for believing the letter of the law does not accurately disclose the legislative intent. Id.
Legislative intent is the polestar that guides the Court’s inquiry under the No Fault law. United Auto. Ins. Co., v. Rodriguez, 808 So.2d 82 (Fla. 2001). The purpose of the no fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption. Government Employees Ins. Co., v. Gonzalez, 512 So.2d 269, 271 (Fla. 3rd DCA 1987). Section 627.736(4)(b) states that “[p]ersonal injury protection benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” (emphasis added). “The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no pay” plan — a result we are sure was not intended by the legislature.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla. 2000) (emphasis added) (citations omitted).
A strict reading of “withdraw” defeats the purpose of the No Fault law because it permits the practice of an ‘out-right’ coverage denial absent reasonable proof and produce a physician’s report at any time thereafter, including after suit, to justify non coverage on a medical basis. See Lasky v. State Farm Ins. Co., 296 So.2d 9, 16 (Fla. 1974) (Explaining that the purpose of the no fault law is to avert litigation and to assure speedy payment of no fault insurance benefits to protect the insured). It is difficult, if not impossible, to fathom how such an outcome serves the purpose of “speedy” payment of PIP benefits. A statute should be construed and applied to give effect to the legislative intent, regardless of whether such construction varies from the statute’s literal meaning. Royal World Metropolitan Inc., v. City of Miami Beach, 863 So.2d 320 (Fla. 3rd DCA 2004) (citation omitted).
A strict interpretation of “withdraw” frustrates the purpose of an IME for it permits the insurer who rejects coverage at the inception to present countervailing medical testimony absent an IME; thus, the IME becomes a meaningless investigative tool. The purpose of an IME is to allow the insurer an opportunity to evaluate a claim and it serves as a mechanism to avert litigation. See U.S. Security Ins. Co., v. Silva, 693 So.2d 593, 596 (Fla. 3rd DCA 1997) (Explaining that § 627.736(7) is “intended to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid.”) (emphasis added). If the insurer voluntarily elects not to exercise its investigative rights under § 627.736(7)(a), it does so at its own peril. Public policy encourages PIP insurers to investigate claims, Palmer v. Fortune Ins. Co., 776 So.2d 1019 (Fla. 5th DCA 2001), and make prompt payment of valid insurance claims without litigation. Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla. 1983). Section § 627.428(1), Florida Statutes, (1982) supports this policy where the purpose of the statute is to sanction the insurer for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier’s power to do so. Government Employees Insurance Co., v. Battaglia, 503 So.2d 358 (Fla. 5th DCA 1987).
To permit a PIP insurer to present countervailing expert medical testimony absent an IME will frustrate the purpose of the No Fault law; it will encourage PIP insurers to litigate medical necessity without fear of reprisal for not exercising its investigative rights where the result of an IME may prevent the cost of litigation and further congestion to an already voluminous court docket.4 Such an outcome does not serve the purpose of the No Fault law; which is intended to provide courts relief from its congested dockets. See Lasky, 296 So.2d at 16.
The plain meaning of “withdraw” under § 627.736(7)(a) inaccurately reflects the legislature’s intent. The Court is persuaded by Plaintiff’s counsel’s argument that the legislature elected to use the term “withdraw” rather than “deny” because it presumed the penalty provisions under §§ 627.736(4)(c) and 627.736(8) would encourage immediate payment as opposed to “stone-walling” the insured thereby creating the likelihood of litigation. See Rodriguez, 808 So.2d at 85 (Fla. 2002) (“The legislative intent evinced in the penalty provisions is clear: The provisions were intended to promote the prompt resolution of PIP claims by imposing several reasonable penalties on insurers who pay late.”) (emphasis added); See also §§ 627.736(4)(c) and 627.736(8). The purpose of § 627.736(7)(a) is to prevent an insurer from denying coverage on a medical basis unless the insurer first obtains a valid report from a physician. See § 627.736(7)(a) (“An insurer may not withdraw payment of a treating physician . . . unless the insurer first obtains a valid report by a Florida physician . . . stating that treatment was not reasonable, related or necessary.”) (emphasis added).
A strict interpretation of “withdraw” leads to a ridiculous result where an insurer who ‘out-right’ denies coverage absent a physician’s report may circumvent § 627.736(7)(a) whereas the insurer who covers a claim must obey the strict letter § 627.736(7)(a) to deny further coverage. To presume the legislature intended such an outcome is unreasonable. Although an insurer is at liberty to reject coverage for other reasons and may produce alternate proof of non compensability at any time, a strict reading of “withdraw” eviscerates § 627.736(7)(a) for the insurer may buttress the original basis of an ‘out-right’ denial with a physician’s opinion absent compliance with § 627.736(7)(a).
If the Court were to accept the insurer’s strict reading of “withdraw,” the constitutionality of the No Fault law will be left in jeopardy. The constitutionality of the No Fault law was upheld in Lasky 296 So.2d at 15, on the premise that in exchange for the loss of a former right to sue in tort, “the injured party is assured speedy payment of his medical bills and compensation for lost income from his own insurer, even where the injured party was himself at fault.” (emphasis added). After Lasky, the Supreme Court reaffirmed the constitutionality of the No Fault law in Chapman v. Dillon, 415 So.2d 12, (Fla. 1982). There, the Court found that recent changes to the No Fault law did not alter the essential characteristic of the No Fault law that guarantees “speedy” payment of economic losses without fault in exchange for the common law right to sue in tort:
“The changes made by the legislature since then have not fundamentally changed this essential characteristic of the no fault law. Although the percentage of recovery of medical expenses has been reduced to 80% and the percentage of lost income has been reduced to 60% to 80%, the absolute limits of PIP coverage have been increased from $5,000 to $10,000. Regardless of the actual amount of recovery, an injured person will receive prompt payment for his major and salient economic losses even where he himself is at fault. Thus, the provisions of section 627.737, still provide a reasonable alternative to the traditional action in tort and therefore do not violate the right of access to courts guaranteed by article I, section 21 of the Florida Constitution.”
Id. at 16 (emphasis added)
The premise of “speedy” payment is the essential characteristic that permits the No Fault legislation to pass constitutional muster. Id. See also Lasky 296 So.2d at 15. To strictly construe “withdraw” by its plain meaning will erode that characteristic and push the No Fault law beyond the outer limits of constitutional tolerance; for it will sanction the practice of insurers to withhold benefits for extended periods of time without any basis whatsoever and then permit them to contest and litigate medical necessity years later absent compliance with § 627.736(7)(a). Thus, the premise of “speedy” payment of salient medical costs without fault, the linchpin upon which the constitutionality of the No Fault law is based, becomes a fiction and no longer a reasonable alternative to the common law right to sue in tort. Therefore, § 627.736(7)(a) must be construed in a way to prevent such an outcome for the Court has a duty, “to construe a statute, if reasonably possible, in such a manner to support its constitutionality — to adopt a reasonable interpretation of a statute which removes it farthest from constitutional infirmity.” Corn v. State, 332 So.2d 4, 9 (Fla. 1976) (citation omitted). A departure from the plain meaning of the term “withdraw” will not change the legislature’s intent for the legislature is presumed to have intended a constitutional result in its legislative enactments. Mash v. Garwood, 65 So.2d 15 (Fla. 1953).
The insurer’s attempt to distinguish Viles, 726 So.2d at 320 on the basis that it dealt with a “withdrawal” ofpayment of a previously covered claim as opposed to a “denial” isan exercise in semantics that disregards the well settled proposition that a PIP suit is governed by principles of contract law. Allstate v. Kaklamanos, 843 So.2d 885 (Fla. 2003). To “withdraw” (i.e. discontinue) payment is indistinguishable from an insurer’s failure to pay benefits within thirty days for in each scenario, the insurer repudiates the contract. See e.g. Peachtree Cas. Ins. Co., v. Walden, 759 So.2d 7 (Fla. 5th DCA 2000); Amador v. United Auto. Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999). In affirming a final summary judgment, the 11th Circuit Court in United Auto. Ins. Co., v. Michael Rose M.D., as assignee of Juan Velazquez, 11Fla. L. Weekly Supp. 1042b (Fla. 11th Jud. Cir. App. 2004) equates “withdrawal” as a “denial” where the Court states:
“[T]o the extent United Auto was denying payment of the bill on the ground that the treatment was unreasonable, unnecessary on any ground other than that the charges were too high, United Auto would have to submit a report from a physician pursuant to Florida Statute, section 627.736(7).” (emphasis added).
Viles does not stand for the proposition that a physician’s report, as a condition precedent, only applies where the insurer seeks to “withdraw” coverage of a previously covered claim. Notwithstanding its underlying facts, Viles stands for the proposition that an insurer must produce a physician’s report under § 627.736(7)(a) as a condition precedent when it seeks to deny coverage on such grounds. The trial court in Viles made no distinction between a “withdrawal” and a “denial” of coverage when it entered judgment notwithstanding the verdict; the trial court found the insurer “was barred from raising the defense that the bills were not reasonable or necessary, because it failed to obtain a physician’s report [under § 627.736(7)(a)] prior to denying payment.” Id. (emphasis added) (alteration in original). The basis of the trial court’s ruling was then affirmed by the Third District.
The insurer argues that the Court is bound by the Supreme Court’s holding in Rodriguez, 808 So.2d at 82 where the Court held that where an insurer fails to pay a claim within thirty days, the insurer is only subject to interest and attorney’s fees; section 627.736 is not a mechanism which bars the insurer’s right to contest a claim for failure to pay and produce proof of non compensability within thirty days. Id. The insurer also submits the holding in Rodriguez, when applied to its facts, stands for the proposition that Rodriguez overruled Viles subsilencio. Plaintiff argues that the holding in Rodriguez is narrow; Rodriguez did not eviscerate or re-write § 627.736(7)(a) and the viability of Viles is unaddressed by Rodriguez. Plaintiff’s relies on the scope of review in Rodriguez which only addressed whether § 627.736 is a strict liability statute.5
The Court rejects the insurer’s interpretation of Rodriguez on two separate grounds. First, the history of the substantive arguments in Rodriguez before the trial court and appellate level reveals the flaw in the insurer’s argument. As Plaintiff’s counsel correctly notes, the timeliness or lack thereof regarding the records review under § 627.736(7)(a) was not the basis of the trial court’s entry of summary judgment in Rodriguez;the timeliness of said report under § 627.736(7)(a) was unaddressed by Third District for it was not raised below nor did the insured, as the appellee, raise the issue on appeal as an alternate basis to affirm the trial court.6 The basis of the trial court’s ruling in Rodriguez, as well as the Third District, is that failure to produce a physician’s report within thirty days under § 627.736(4)(b) forfeits all of the insurer’s defenses; thus, when the Supreme Court accepted jurisdiction in Rodriguez to resolve the conflict among the District Courts, the effect of an untimely physician’s report under § 627. 736(7)(a) was not the question before the Supreme Court for it was not the subject of disagreement among the District Courts; rather, the subject of disagreement is whether § 627.736 is a strict liability statute. Further, because the law of the case in Rodriguez did not address the effect of an untimely report under § 627.736(7), the trial court in Rodriguez on remand would be permitted to address the issue. See e.g., Florida Dept. of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001) (The law of the case doctrine has no applicability to, and is not decisive of, points not presented before the appellate court for adjudication; therefore, a trial court may consider such points on remand.) Secondly, Rodriguez did not “nilly willy” strike down § 627.736(7)(a) nor did Rodriguez rewrite the requirement of a physician’s report as a condition “subsequent.” To assume otherwise, the Court must presume Rodriguez reversed the well settled proposition of law that a subsection of statute may not be read in isolation — a statute may not be construed in a way that renders part of it meaningless and courts are without authority to re-write a statute. See e.g. Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 456 (Fla. 2000) (All parts of a statute must be read together and courts should avoid readings that render part of a statute meaningless); Brown v. State, 358 So.2d 16 (Fla. 1978) (The courts are without authority to re-write a statute).
The Rodriguez Court only disagreed with the Third District’s finding that (1) “reasonable proof” under § 627.736(4)(b) is restricted to a medical report and (2) § 627.736 bars an insurer’s right to contest a claim where it fails to pay and produce reasonable proof within 30 days; but that is not to say Rodriguez also holds that an insurer may contest coverage with a physician’s opinion based on a report that lacks compliance with § 627.736(7)(a). In the Court’s view, Rodriguez does not stand for the proposition that an insurer is permitted to deny coverage on a medical basis absent a valid physician’s report and contest medical necessity with a countervailing medical opinion produced by the insurer afterwards; instead, Rodriguez only stands for the proposition that a physician’s report under § 627.736(7)(a) is not an absolute requirement within thirty days; section 627.736 is not a strict liability statute; if found liable, the insurer is only subject to interest and attorney’s fees under the PIP statute. See Rodriguez, 808 So.2d at 82. However, the question whether an insurer waives its right to present a countervailing expert medical opinion absent compliance with § 627.736(7)(a) is unaddressed by Rodriguez but is addressed by Viles.
Viles stands in harmony with Rodriguez for the insurer’s right to due process in Viles was honored; the insurer’s affirmative defense of fraud and right to present evidence of substantial impeachment, which would otherwise create a jury question regarding reasonable, necessary and related, were permitted in Viles despite the insurer’s failure to pay within 30 days absent reasonable proof.7 Thus, Viles supports the proposition that an insurer waives the right to present countervailing medical testimony absent compliance with § 627.736(7)(a); but remains consistent with Rodriguez for Viles honors the insurer’s right to present other proof of non compensability.
The question addressed by Rodriguez is an entirely distinct proposition from the one proffered by Plaintiff’s counsel which is supported by Viles. The argument, as couched by Plaintiff’s counsel, is not that the PIP statute bars the insurer’s due process right to contest a claim for failure to pay and produce proof of non-compensability within 30 days; but rather, the insurer’s failure to comply with § 627.736(7)(a) results in waiver of the insurer’s right to present countervailing medical testimony; but the insurer may present evidence of other proof of non compensability. The Court is persuaded by Plaintiff’s argument and finds that an insurer’s failure to comply with § 627.736(7)(a) results in waiver of an insurer’s right to present countervailing expert testimony from a physician. The doctrine of waiver, not the PIP statute, is the mechanism that bars the insurer from presenting such evidence. Generally, one can waive any contractual, statutory or constitutional right. Miami Dolphins, LTD., v. Genden & Bach P.A., 545 So.2d 294, 296 (Fla. 3rd DCA 1989) (citation omitted). The doctrine of waiver can encompass not only the intentional or voluntarily relinquishment of known rights, but also conduct that warrants an inference of the relinquishment of those rights. Id. at 296 (citation omitted). Despite such waiver, the insurer still may contest the claim with other evidence of non-compensability.
In the present matter, the insurer denied coverage absent a valid report from a chiropractic physician. Although the insurer is at liberty to deny coverage on other grounds, which it did in this case, it may not seek to buttress such denial with a medical opinion from an invalid report produced after the fact. Under the statute, proof of non compensability is not absolute within 30 days, see § 627.736(4)(b), but a valid report is a condition precedent to rejecting coverage based on a physician’s opinion. See § 627.736(7)(a). Thus, the insurer’s prerogative to disregard § 627.736(7)(a) results in waiver of its right to present the report and countervailing testimony of Dr. Fleischer D.C. This result, however, is consistent with Rodriguez for the insurer is availed to other defenses or may substantially impeach the insured’s treating physician. Moreover, the insurer has an opportunity to find evidence that may support other theories for non compensability during discovery.
The insurer argues that § 627.736(4)(b) permits an insurer to contest reasonable, necessary and related with a countervailing medical opinion at any time. The insurer relies on the following language under § 627.736(4)(b): “This paragraph does not preclude or limit the ability of the insurer to assert that the claim is was unrelated, was not medically necessary, or was unreasonable . . . . Such assertion by the insurer may be made at any time . . . .”In rebuttal, Plaintiff argues that § 627.736(4)(b) permits the insurer to contest a claim with a countervailing medical opinion at “any time” where such evidence complies with § 627.736(7)(a).
When read as a whole, § 627.736 is unsupportive of the proposition that an insurer may contest reasonable, necessary and related with a countervailing medical opinion produced at any time. If the legislature intended to permit an insurer to contest coverage at “any time” with an expert opinion based on an untimely and invalid physician’s report under § 627.736(7)(a), it could have clearly and expressly stated that intention under § 627.736(4)(b); but it did not and therefore, the Court may not infer otherwise for “inference and implication [may not] be substituted for clear expression.” Carlile, 354 So.2d at 364 (citation omitted) (alteration in original). Further, the insurer impermissibly reads § 627.736(4)(b) in isolation where the statute must be read as whole. See Forsythe, 604So.2d at 455 (Fla. 2000) (“[A]ll parts of a statute must be read together in order to achieve a consistent whole.”) (citation omitted). The maxim “ut res magis valeat quam pereat” requiresnot merely that the statute should be given effect as a whole, but that effect should be given to each of its provisions. State v. M.M. & S.E., 407 So.2d 987, 989 (Fla. 4th DCA 1982). The insurer’s interpretation of § 627.736(4)(b) eviscerates the requirements of § 627.736(7)(a); which violates the well settled proposition “that courts should avoid readings that render part of a statute meaningless.” Forsythe, 604 So.2d at 456 (emphasis added) (citation omitted).
The statutory phraseology upon which the insurer relies simply means § 627.736(4)(b) is not a mechanism which bars the insurer’s ability to “assert” treatment lacks the statutory criteria and such assertion can be made at any time.8 However, the necessary proof to support the insurer’s assertion under § 627.736(4)(b) is undefined by legislature; but where such proof is a physician’s report, such evidence is governed and defined by § 627.736(7)(a); therefore, by reading both subsections in pari materia, this Court finds that where the insurer’s proof of non compensability under § 627.736(4)(b) is a physician’s countervailing opinion, such evidence must also comply with § 627.736(7)(a). See Okeechobee Health Care v. Collins, 726 So.2d 775, 776 (Fla. 1st DCA 1998) (Subsections of the same statute must be read in pari materia.) (citation omitted).
Although the right to present evidence and call witnesses is perhaps the most important due process right of a litigant, LoBue v. Travelers Ins. Co., 388 So.2d 1349, 1351 (Fla. 4th DCA 1980), the testimony of a witness may be barred where there are compelling circumstances. Delgardo v. Allstate Ins. Co., 731 So.2d 11, 14 (Fla. 4th DCA 1999). The circumstances compel the exclusion of Dr. Fleischer’s opinion to preserve statutory and contractual requirements which hold equal weight with due process considerations. To uphold the insurer’s due process right to call a medical expert absent compliance with § 627.736(7)(a) will eviscerate or re-write part of the statute. Further, because § 627.736 must be read into the contract of insurance, see Grant v. State Farm Fire & Cas. Co., 638 So.2d 936, 938 (Fla. 1993), the insurer has a contractual obligation to the insured that it must obtain a valid report from a physician as a condition precedent to rejecting coverage on a medical basis; otherwise, it is a breach of contract. The insurer’s right to due process, however, is honored (i.e. Rodriguez)for the insurer may contest the claim with other coverage defenses or present evidence of substantial impeachment of the treating physician as proof of non compensability.
In the present matter, the Court has not stricken the insurer’s affirmative defenses, which were voluntarily withdrawn, for failure to pay and produce reasonable proof within thirty days. The insurer has not produced ‘other’ proof of non-compensability to show that treatment is not reasonable, necessary and related or that the insurer is not liable on other grounds even though the insurer had an opportunity to present such evidence; therefore, in light of the legal insufficiency of Dr. Fleischer’s opinion and report and the insurer’s failure to present other proof of non compensability to preclude summary judgment, it is hereby ORDERED & ADJUDGED that
1. The countervailing affidavit and report of Dr. Fleischer D.C. is stricken as invalid and untimely under § 627.736(7)(a).
2. Final summary judgment is hereby entered in favor of Plaintiff, EDUARDO J. GARRIDO D.C., and against Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
3. Plaintiff, EDUARDO J. GARRIDO D.C., P.A., as assignee of Blanca Milian, shall recover from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, shall recover the sum of $2552.00 on principal, the sum of $618.00 in late interest penalties under Fla. Stat. § 627.736(4)(c), making a total of $3,170.80 that shall bear interest at the rate of 7% that shall bear interest for which let execution issue.
4. The Supreme Court’s ruling in Rodriguez, 808 So.2d at 82, is a subject of confusion and disagreement among the County Courts of this State. The holding in Rodriguez, when applied to its underlying facts, has opened the door to the question whether an insurer, who ‘out-right’ denies benefits, may present countervailing testimony from a physician absent compliance with § 627.736(7)(a) or where the foundation of the expert’s opinion, i.e., the physician’s report, is non compliant with § 627.736(7)(a). In light of the already voluminous number of PIP cases in the dockets of our courts, the lower courts are in need of guidance and prompt resolution regarding this question in the current post “Rodriguez Era”;therefore, this Court, pursuant to Rule 9.160(a) and (d), Fla. R. App. P., hereby certifies the following question(s) of great public importance for direct appellate review by the Third District Court of Appeal:
MUST AN INSURER COMPLY WITH THE REQUIREMENTS OF § 627.736(7)(a), FLORIDA STATUTES (2001) WHERE IT REJECTS PIP COVERAGE AS OPPOSED TO A “WITHDRAWAL” OF COVERAGE WHERE THE INSURER SEEKS TO BASE SUCH REJECTION ON THE GROUNDS OF A PHYSICIAN’S OPINION?
If the answer to the foregoing question is in the affirmative, then:
MAY A PIP INSURER PRESENT COUNTERVAILING TESTIMONY OF A PHYSICIAN TO CONTEST WHETHER AN INSURED’S TREATMENT IS REASONABLE, NECESSARY AND RELATED WHERE THE PHYSICIAN’S OPINION IS BASED ON AN INVALID AND UNTIMELY PHYSCIAN’S REPORT UNDER § 627.736(7)(a)?
__________________
1Apart from withdrawing its affirmative defense of late notice, the insurer also withdrew its affirmative defense of late billing, EUO no show and licensing.
2Judge Farmer’s concurring opinion in Nationwide Mut. Fire Ins. Co., v. Southern Diagnostics, 766 So.2d 229 (Fla. 4th DCA 2000) provides a comprehensive discussion regarding the distinction between a withdrawal of payment and a denial. Judge Farmer’s opinion supports the insurer’s argument: i.e. § 627.736(7)(a) is inapplicable to an insurer’s ‘out-right’ denial of payment. However, there is no discussion or analysis in Judge Farmer’s concurring opinion whether a strict construction of the term “withdraw” willlead to an absurd or ridiculous result where the term is strictly construed. But in any event, the majority opinion in Nationwide is not binding where the District Court in that case did not construe the current statute which defines a valid physician’s report.
3A PIP insurer’s rejection of a bill for lack of necessity is a coverage dispute; a PIP insurer assumes the risk of covering the insured for eighty percent of reasonable, necessary and related expenses. See § 627.736(1). A bill is a not a covered loss under the PIP statute if the bill is not reasonable, necessary or related; therefore, the insured must prove the bill is a reasonable, necessary and related expense covered by the policy. See Derius v. Allstate Indemnity Co., 723 So.2d 721 (Fla. 4th DCA 1998). Coverage is defined as “the assumption for the risk of occurrence of the event insured against before its occurrence.” Black’s Law Dictionary, 6th Ed. (1990) (citation omitted) (emphasis added). Insurance coverage is also defined as “an undertaking by one party to protect another party from loss arising from named risks . . . .” Couch on Insurance, § 1:6 (3rd Ed.) (citation omitted). An “insured cannot recover on a policy unless the loss is occasioned by one of the perils covered by the policy.” Id. at § 101.1.
4It is reasonable to presume than an IME examiner may find that the insured’s treatment is necessary and therefore benefits should be paid to avert litigation.
5In other words, the question in Rodriguez is whether § 627.736 bars the insurer’s constitutional right to ‘procedural’ due process (i.e. the right to contest a claim) for failure to pay and produce reasonable proof within 30 days. Procedural due process rights derive from a property interest in which the individual has a legitimate claim. Metropolitan Dade County v. Sokolowski, 439 So.2d 932, 933 (Fla. 3rd DCA 1983) (citation omitted). Once acquired, a property interest falls within the protections of procedural due process. Id. A property interest may be created by statute, ordinance or contract. Id. Procedural due process protects an individual’s right to a fair judicial proceeding. Dept. of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla. 1991). The right to due process of law extends to corporations. State v. Coastline R. Co., 47 So. 969 (Fla. 1908). The fundamentals of procedural due process are (1) hearing (2) before an impartial decision maker after (3) fair notice of the charges and allegations (4) with the opportunity to present one’s own case. Neff v. Adler, 416 So.2d 1240, 1242, 1243 (Fla. 4th DCA 1982) (citation omitted).
6It is safe to assume that the insured in Rodriguez did not raise the argument regarding the timeliness of the ‘peer’ review under § 627.736(7)(a) where the Third District did not address it.
7The trial court’s entry of judgment notwithstanding the verdict in Viles was based on the court’s interpretation of § 627.736(7)(a). In light of this, it must be presumed the insurer in Viles did not present evidence of fraud or substantial impeachment through rigorous cross examination of the treating physician; if the case were otherwise, the trial court’s entry of judgment notwithstanding the verdict would be error. See Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2nd DCA 1999) (In the absence of countervailing expert testimony, the non moving party must present evidence of substantial impeachment of moving party’s expert to survive the entry of a directed verdict.) A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Scott v. TPI Restaurants Inc., 798 So.2d 907 (Fla. 5th DCA 2001). When considering a motion for directed verdict, the trial court is required to evaluate the evidence in the light most favorable to the non moving party and every reasonable inference must be indulged in that party’s favor. Id. The same standards apply to a post verdict motion for judgment in accordance with a priormotion for directed verdict. Thore Bear Inc., v. Crocker Mizer Park, Inc., 648 So.2d 169, 172 (Fla. 4th DCA 1995).
8The term “assertion” isdefined by the dictionary as “[t]he act of asserting or declaring. A declaration stated positively but with no support or attempt at proof.” American Heritage Dictionary, 79 (1976) (emphasis added).
* * *
