12 Fla. L. Weekly Supp. 88b
Insurance — Personal injury protection — Coverage — Lost wages — Insured is entitled to loss of gross income for time he was forced to take as paid vacation days due to injuries, and insurer does not receive credit in amount paid to insured by his employer for those vacation days — Unreasonable, unrelated or unnecessary medical expenses — Summary judgment on entitlement to payment for medical services is precluded by factual issue regarding reasonableness, relatedness, and necessity of services raised by peer review
ENRIQUE IGNACIO GARCIA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-2538 CC 25(3). October 12, 2004. Mercedes A. Bach, Judge. Counsel: Kevin A. Whitehead, Downs Brill Whitehead. Crystal Harvey.
ORDER GRANTING in part PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, ENRIQUE IGNACIO GARCIA’s, Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. GRANTED in part. There is no genuine issue of material fact regarding the Plaintiff’s, ENRIQUE GARCIA’s, lost wage claim. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits from both parties, 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. The Plaintiff is entitled to receive loss of gross income in the amount of $2,760.00 (6 weeks @ 11.50 hr. / 40 hours a week).
2. This Court finds that as a matter of law, the Plaintiff is entitled to loss of gross income for the time that he was forced to take as paid vacation days. The Defendant does not receive a credit in the amount paid to ENRIQUE GARCIA ($1,000.00) by his employer for paid vacation days that he was forced to take as a result of his inability to work due to the injuries that he sustained in the subject accident on July 6, 2000. Thus, the Plaintiff is entitled to receive $2,760.00 at 60% which equals $1,656.00, from the Defendant, plus interest on all overdue payments, for which let execution issue.
3. The Court finds that there exists a genuine issue of material fact whether the medical services performed by Dr. Rolando Garcia at AVENTURA ORTHOPEDICARE CENTER for date of service on 1/3/02 in the amount of $1,785.00 is reasonable, related and necessary. The Court considers the Peer Review of Dr. Peter Millheiser filed in opposition to the Plaintiff’s motion over the Plaintiff’s objections.
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FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, ENRIQUE IGNACIO GARCIA’s, Motion for Summary Judgment, the Court having heard argument of counsel on 10/4/04 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, ENRIQUE IGNACIO GARCIA, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E.163rd Street, North Miami Beach, FL 33160, the principal sum of ONE THOUSAND SIX HUNDRED AND FIFTY SIX DOLLARS ($1,656.00) plus interest in the amount of TWO HUNDRED NINETY THREE DOLLARS AND FORTY NINE CENTS ($293.49), for a total amount of ONE THOUSAND NINE HUNDRED FORTY NINE DOLLARS AND FORTY NINE CENTS ($1,949.49), 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 ENRIQUE IGNACIO GARCIA 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’s counsel, and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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