12 Fla. L. Weekly Supp. 83a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Examination under oath — Failure to attend — Insurer is barred from using insured’s failure to attend EUO as reason for non-payment where insurer failed to timely schedule EUO within 30 days of notice of loss — Independent medical examination — Failure to attend — Where insurer rescheduled IME appointment, it waived right to suspend benefits as of first IME date — However, where insured unreasonably failed to attend rescheduled IME, medical bills received after that date are not payable by insurer — Claim form — Failure to properly complete box 31 of HCFA form is not legal basis to deny payment — Civil procedure — Motion to strike affidavit of medical provider’s office manager as untimely served is denied where affidavit was served by facsimile 14 days prior to hearing and insurer had ample opportunity to file affidavits in opposition thereto and did so — There is no requirement for moving party to file affidavit in support of motion for summary judgment 20 days prior to hearing — Motion for summary judgment is granted where provider complied with all conditions precedent to suit, and there do not exist any questions of material fact regarding reasonable, necessary, and related medical expenses incurred by insured and insurer’s failure to pay
GLENN V. QUINTANA D.C., P.A., a/a/o Diana Sanchez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 04-1287 CC 25 (1). October 25, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Camille Miller.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on September 27, 2004, after due notice to the parties, on Plaintiff’s, GLENN V. QUINTANA D.C., P.A., a/a/o Diana Sanchez’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. 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 is no genuine issue of material fact and Plaintiff is entitled to Final Summary Judgment as a matter of law.
2. The Defendant has withdrawn its affirmative defense on the issue of licensure in open Court, therefore it is no longer an issue.
3. The Defendant’s Motion to Strike Plaintiff’s Affidavit of Cecilia Valdes served and filed on or about September 13, 2004, is DENIED.
FINDINGS OF UNDISPUTED FACT
4. The Plaintiff sued the Defendant on February 18, 2004, 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 June 22, 2003.
5. The Plaintiff sued the Defendant for medical expenses in the amount of $9,098.00 for services provided June 24, 2003, through October 15, 2003.
6. On or about March 16, 2004, the Defendant filed its Answer and Affirmative Defenses.
7. As the Defendant’s first affirmative defense it alleges the claimant failed to perform all of the conditions precedent to entitle Plaintiff to recovery in that claimant failed to cooperate, and failed to attend scheduled sworn statement.
8. The Defendant breached the terms of its insurance policy by failing pay the initial set of medical bills within thirty (30) days of receipt of same or establish it had reasonable proof that it (Defendant-insurer) is not responsible for the payment pursuant to Fla. Stat. 627.736(4)(b).
9. The Plaintiff filed the deposition transcript of the Defendant’s Adjuster, Estrella Godoy, who testified the Defendant first received bills from the Plaintiff on August 5, 2003, for dates of service June 24, 2003, through July 18, 2003. The Defendant did not send a letter requesting an EUO to the claimant until September 25, 2003, for an appointment on October 27, 2003. Additionally, the Defendant re-scheduled the EUO appointment via a letter dated October 29, 2003, for an appointment on November 10, 2003. The claimant failed to appear for either appointment.
10. The Defendant’s second affirmative defense alleges the claimant unreasonably failed and/or refused to attend independent medical examinations scheduled on the Defendant’s behalf. As such, claimant has failed to comply with conditions precedent and/or subsequent and defendant is not obligated to pay the medical charge received by Defendant subsequent to claimant’s non-attendance. Claimant’s refusal also constitutes a violation of Fla.Stat. 627.736.
11. The Plaintiff acknowledges the claimant did not attend an IME scheduled for August 12, 2003. However, Defendant rescheduled the IME appointment for August 26, 2003, and therefore waived its right to suspend benefits as of August 12, 2003. Since the Defendant received bills from the Plaintiff on August 5, 2003, and August 12, 2003, these two sets of bills are payable pursuant to US Security Insurance Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1993) and Tomas v. U.S. Security Ins. Co., 9 Fla. L. Weekly Supp. 21b (Fla. 11th Cir. Court 2001).
12. The Defendant withdrew its third affirmative defense on the issue of licensure.
13. The Defendant’s fourth Affirmative Defense alleges the Plaintiff failed to timely submit a portion of the medical bills. Defendant states pursuant to Fla. Stat. 627.736(5)(b), Defendant is not liable to pay for these bills, and the payment of said bills is not overdue.
14. The Plaintiff filed the deposition transcript of the Defendant’s Adjuster, Estrella Godoy, who testified the Defendant first received bills from the Plaintiff on August 5, 2003, for dates of service June 24, 2003, through July 18, 2003. This set of bills was postmarked “July 25, 2003.”
15. The Plaintiff’s first set of bills were postmarked within 35 days of the first date of service and therefore timely pursuant to § 627.736.
16. The Defendant’s Fifth Affirmative Defense alleges it has not been furnished with the fact of a covered loss in that Plaintiff failed to comply with 627.736(5) by failing to properly complete all the material provisions of the HCFA form.
17. Ms. Godoy stated in her deposition, Box 31 of the HCFA forms were improperly completed. Ms. Godoy’s contention the bills should not be paid due to box 31 of the HCFA forms being improperly completed is not a legal basis to deny payment. United Automobile Insurance Co. v. Medical Specialists & Diagnostic Services a/a/o Richard Navas, 11 Fla. L. Weekly Supp. 508a (Fla. 9th Judicial Circuit 2004).
18. The Plaintiff’s medical expenses are reasonable, related and necessary. The Plaintiff filed the affidavit of the treating physician, Glenn Quintana, DC, who testified that all of the treatment was related and medically necessary.
19. The Plaintiff filed the affidavit of the person with the most knowledge of the billing and records from QUINTANA, Cecilia Valdes, which establishes all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and the subject charges were reasonable and customary in the community.
20. The Plaintiff served the affidavit of Cecilia Valdes via facsimile on September 13, 2004.
21. In the instant case, there remains due and owing $2,765.00, for services provided June 24, 2003, through July 24, 2003, times 80% which equals $2,212.00, minus the $2,000.00 deductible, which equals $212.00, plus statutory interest that UNITED AUTOMOBILE has not paid as of this date.
22. The Defendant failed to establish it had reasonable proof it was not responsible for payment of these medical bills 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 stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding bills remain due and owing plus 10% interest from 30 days after receipt of each bill up to and including the present date.
23. The Defendant has no basis under its contract or §627.736(4) or (7) to establish it is not responsible for these charges.
24. Because there do not exist any questions of material fact regarding the Defendant’s failure to pay the Plaintiff’s medical bills pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Summary Judgment.
25. The Plaintiff 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 plus 10% interest from 30 days after receipt of each bill up to and including the present.
ISSUES OF LAW
26. 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.
27. 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.
28. 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).
29. The Defendant failed to establish it had reasonable proof 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.
30. 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 Motion for Summary Judgment.
31. United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), also supports the Plaintiff’s position.
32. 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). The Defendant has failed to substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician.
33. The Defendant breached the terms of its insurance policy by failing to pay the subject medical expenses within thirty (30) days of receipt of same or establish it had reasonable proof that it (Defendant-insurer) is not responsible for the payment pursuant to Fla.Stat. 627.736(4)(b).
34. Since the Defendant breached the subject policy of insurance and failed to timely schedule an EUO within thirty (30) days of receipt of notice of the loss, it is therefore barred from using the claimant’s failure to attend the EUO as a reason for non-payment. Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999); United Automobile Ins. Co. v. Millenium Diagnostic & Imaging Center, a/a/o Catalina Candelario, 10 Fla. L. Weekly Supp. 971c (Fla. 11th Jud. Cir. 2003).
35. The Defendant’s second affirmative defense alleges the claimant unreasonably failed and/or refused to attend independent medical examinations scheduled on the Defendant’s behalf. As such, claimant has failed to comply with conditions precedent and/or subsequent and defendant is not obligated to pay the medical charge received by Defendant subsequent to claimant’s non-attendance. Claimant’s refusal also constitutes a violation of Fla. Stat. 627.736.
36. The Plaintiff acknowledges the claimant did not attend an IME scheduled for August 12, 2003. However, Defendant rescheduled the IME appointment for August 26, 2003, and therefore waived its right to suspend benefits as of August 12, 2003. Since the Defendant received bills from the Plaintiff on August 5, 2003, and August 12, 2003, these two sets of bills are payable. US Security Insurance Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1993); Tomas v. U.S. Security Ins. Co., 9 Fla. L. Weekly Supp. 21b (Fla. 11th Cir. Court 2001).
37. The Court finds, however, that as a matter of law, the claimant/insured, Diana Sanchez, unreasonably refused to attend her second IME and therefore, all medical bills received after that date are not payable by the insurance company. US Security Insurance Co. v. Silva, 693 So.2d 593 (Fla. 3d DCA 1993).
38. The Defendant’s contention the bills should not be paid due to box 31 of the HCFA forms being improperly completed is not a legal basis to deny payment. United Automobile Insurance Co. v. Medical Specialists & Diagnostic Services a/a/o Richard Navas, 11Fla. L. Weekly Supp. 508a (Fla. 9th Judicial Circuit 2004).
39. The Court finds the affidavit of the Plaintiff’s office manager, Cecilia Valdes, was timely served on the Defendant and therefore DENIES the Defendant’s Motion to Strike Affidavit filed on or about September 24, 2004.
40. There is no duty for the moving party to file an affidavit in support of a motion for summary judgment twenty (20) days prior to a hearing for summary judgment contained in Fla.R.Civ.P. 1.510.
41. The case cited by Defendant in its Motion to Strike Plaintiff’s Affidavit, Florida Dept. of Financial Services v. Assoc. Industries Insurance Co., 868 So.2d 600 (Fla. 1st DCA 2004), is distinguishable from the case at bar. In Associated Industries, the court held supplemental affidavits filed in support of a previously filed affidavit must be filed twenty days prior to a hearing for summary judgment in order to give the non-moving party adequate time to respond. Citing Fla.R.Civ.P. 1.510(e) and Gulliver v. Tex. Commerce Bank, 787 So.2d 256 (Fla. 5th DCA 2001).
42. In the current action, the Plaintiff served the affidavit on September 13, 2003, via facsimile. The Defendant served the affidavit of its litigation adjuster on September 23, 2004, in its Response to Plaintiff’s Motion for Summary Judgment, and filed a Motion to Strike Plaintiff’s Affidavit on September 24, 2004. The Court heard arguments on Plaintiff’s Motion for Summary Judgment on September 27, 2004.
43. The Defendant possessed ample opportunity to file affidavits in opposition to the statements contained in Ms. Valdes’ affidavit and, in fact, did so. The Defendant cannot claim it is prejudiced by an affidavit it received fourteen days prior to the hearing on summary judgment.
44. The Defendant failed to establish the subject charges are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
45. Because there do not exist any questions of material fact regarding the related, reasonable and necessary medical expenses incurred by the claimant, Diana Sanchez, and submitted to UNITED AUTOMOBILE by the subject provider, GLENN QUINTANA, DC, PA, and the Defendant’s failure to pay the Plaintiff’s medical bills in the amount of $212.00 pursuant to the terms of the policy and § 627.736, the Plaintiff is entitled to Summary Judgment.
46. The Defendant has no basis under its contract or §627.736(4) or (7) to establish it is not responsible for the medical expenses in the amount of $212.00.
47. As of this date, the Defendant either failed to prove any facts to support its defenses or file any motions entitling it to Judgment as a Matter of Law on its defense.
48. The Plaintiff 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 plus interest from 30 days after receipt of each bill up to and including the present.
49. The Plaintiff is entitled to Final Summary Judgment in the amount of $212.00 plus statutory interest that UNITED AUTOMOBILE has not paid as of this date, for which let execution issue.
50. This Court finds 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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