12 Fla. L. Weekly Supp. 790a
Insurance — Personal injury protection — Coverage — Denial — Reasonable proof within thirty days — Claims adjuster’s deposition testimony that insurer down-coded CPT codes at issue without reasonable proof, in conjunction with medical provider’s motion for partial summary judgment, shows insurer failed to obtain reasonable proof within 30-day authentication period — Affidavit of president of coding consultant firm does not establish dispute of material fact as to CPT codes — Affidavit prepared for sole purpose of litigation and lacking trustworthiness is inadmissible — Exhaustion of policy limits — Insurer that failed to plead exhaustion of policy limits as defense before or during hearing on motion for partial summary judgment waived defense — Partial summary judgment granted in favor of provider
FRANCISCO M. GOMEZ, M.D., P.A., (As assignee of Billy Wood), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-12286-SC, Division I. May 12, 2005. Charlotte Anderson, Judge. Counsel: Timothy Patrick, Timothy A. Patrick, P.A., Tampa. Alan Scharf.
Editor’s note: See 13 Fla. L. Weekly Supp. 558a for appellate court decision on appeal from final judgment in this case.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on April 12, 2005 on Plaintiff’s Motion for Partial Summary Judgment, and the Court having heard argument of counsel, having considered the authorities, and being otherwise fully advised in the premises, the Court makes the following findings:
1. Plaintiff’s Motion for Partial Summary Judgment is GRANTED as to the CPT code 99245 billed in the amount of $326.40 for the date of service of February 27, 2003 and CPT code 99215 billed in the amount of $205.00 for the date of service of March 27, 2003.
2. Plaintiff previously filed an excerpt of the deposition transcript of Defendant’s claims adjuster, Danielle Hunter, who testified that Defendant down coded each of the aforementioned CPT codes without reasonable proof.
3. On April 8, 2005, Defendant filed an affidavit of Debra Pacha, president of Medical File Consultants, Inc., in an attempt to establish the existence of a material fact as to the aforementioned CPT codes.
4. Defendant also asserted the defense that the benefits were exhausted during suit in an attempt to defeat Plaintiff’s Motion for Partial Summary Judgment.
5. As to Defendant’s first defense, this Court finds that it cannot consider the affidavit of Debra Pacha proffered by Defendant because the affidavit constitutes “inadmissible evidence.”
6. This Court finds that the affidavit constitutes inadmissible evidence because the affidavit was prepared for the sole purpose of litigation and lacks trustworthiness pursuant to Crosby v. Paxson Electric Co., 534 So.2d 787 (Fla. 1st DCA 1989) (“[A]n affidavit in support of summary judgment that does no more than indicate the documents that appear in the files and records of a business is not sufficient to meet the business records exception to the hearsay rule.”); Thomasson v. The Money Store/Florida Inc., 464 So.2d 1309 (Fla. 4th DCA 1985) (“[T]he affidavit in support of summary judgment demonstrates no more than that the documents attached thereto appear in the files and records of [the moving party]. This is not a sufficient showing to meet the requirements of the business records hearsay exception . . . Therefore, the affidavit does not set forth such facts as would be admissible in evidence . . .”) McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000) (“Dr. Phillips’ report must be examined separately because it was not prepared solely for the purpose of litigation. Nevertheless, we conclude that it too falls within the category of those records in which ‘the sources of information or other circumstances show lack of trustworthiness.’ Dr. Phillips was hired by Perry’s insurance carrier to examine her for the purposes of assisting the carrier in its determination of whether the treatment Perry was obtaining was ‘reasonable, related or necessary’ pursuant to section 627.736(7). Thus, the carrier’s motivation for requesting the examination was financial one that placed the physician in much the same adversarial posture in relation to the insured as that of a physician hired by an opposing party to perform an IME for the purpose of litigation. All of the trustworthiness issues that pertain to Dr. McCraney’s IME report apply equally to Dr. Phillips PIP report. Therefore, we also conclude that it was an abuse of discretion to admit the report of Dr. Phillips as a business record.”).
7. As to Defendant’s second defense, this Court finds that the exhaustion of benefits defense offered by Defendant is insufficient because Defendant failed to plead exhaustion of benefits as a defense before, or during, the hearing on Plaintiff’s Motion for Partial Summary Judgment, and therefore pursuant to black letter law, Defendant has waived the defense.
8. Thus, the only evidence before the Court for which it may consider, is the deposition testimony of Ms. Hunter that was filed in conjunction with Plaintiff’s Motion for Partial Summary Judgment.
9. This Court finds that the deposition testimony of Ms. Hunter establishes that Defendant failed to obtain the requisite reasonable proof.
10. As to the case law submitted by Defendant regarding the defense of exhaustion, this Court finds that the following cases only speak to general escrow requests and shed no light on the issue of pleading the defense of exhaustion. See Francisco Gomez, M.D., P.A., (a/a/o Noemia Brunet) v. Progressive Express Ins. Co., 12 Fla L. Weekly Supp. 121b (Fla. 13th Cir. Ct. Oct. 20, 2004); Vincent DiCarlo, M.D. & Assoc., (a/a/o Bonita Thurston) v. American Home Assurance Co., 11 Fla. L. Weekly Supp. 305b (Fla. 13th Cir. Ct. Jan. 20, 2004).
11. This Court finds that Defendant failed to file anything, not even the remainder of Ms. Hunter’s deposition transcript, which could defeat Plaintiff’s Motion for Summary Judgment.
12. This Court finds that the deposition testimony of Ms. Hunter, in conjunction with Plaintiff’s Motion for Partial Summary Judgment, shows that Defendant failed to obtain reasonable proof within the thirty (30) day authentication period required under Florida Statutes section 627.736(4)(b) (2003), and therefore Defendant violated Florida Statutes section 627.736(4)(b).
13. This Court finds that there are no further issues of material fact remaining that concern the amount of $326.40 billed for CPT code 99245 on February 27, 2003 and the amount of $205.00 billed for CPT code 99215 on March 27, 2003.
It is ORDERED and ADJUDGED that for the above stated findings, reasons and cited case law, Plaintiff’s Motion for Partial Summary Judgment is GRANTED in the amounts of $261.12 and $164.00, excluding the statutory interest. The Court retains jurisdiction to determine attorney’s fees and costs.
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