12 Fla. L. Weekly Supp. 490a
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unnecessary or unrelated medical expenses — Reasonable proof within thirty days — While insurer does not lose right to contest whether bill is reasonable, related and necessary if it fails to obtain reasonable proof within 30 days of receipt, insurer must obtain medical report before it can thereafter withdraw benefits — Where more than 30 days after receipt of bills for medical and chiropractic treatment insurer obtained peer review by chiropractor opining that some chiropractic treatment was excessive, and insured’s motion for summary judgment does not argue that insurer withdrew benefits before it obtained medical report or establish that no dispute exists as to whether insurer failed to obtain medical report before withdrawing benefits, insured is entitled to summary judgment as to all medical bills but is entitled to summary judgment only as to that portion of chiropractic bills not controverted by peer review
HEALTH CARE MEDICAL GROUP (a/a/o Francisco Carreras), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-14809 COCE 53. February 22, 2005. Robert W. Lee, Judge. Counsel: Caroline V. Perlegas, Fort Lauderdale, for Plaintiff. Rashad El-Amin, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 14, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background:
1. Francisco Carreras was involved in an automobile accident on or about September 7, 2002. At that time Carreras was covered by a policy of automobile insurance, including personal injury protection (“PIP”) benefits. This policy was issued by the Defendant, United Automobile Insurance Company and was in full force on the date of the accident.
2. After the accident, Carreras was treated by the Plaintiff, Health Care Medical Group, for injuries sustained in the accident. The Plaintiff accepted an assignment of PIP benefits from Carreras in exchange for providing medical services. The Plaintiff has submitted invoices to United Automobile for medical services from September 19, 2002 through November 20, 2002, for a total of $9,985.00, none of which have been paid. The Plaintiff has submitted an affidavit of Carlos Aguilar, M.D., which provides that the medical treatment as well as Carreras’s treatment was reasonable, medically necessary, and related to the automobile accident of September 7, 2002.
3. In response, the Defendant argues that a disputed issue of material fact exists as to whether the treatment was reasonable, related or medically necessary. To support this argument, the Defendant relies on its sworn “Answer to Affirmative Defenses Interrogatories” executed by Sandra Canto, its post-suit litigation adjuster. In the response, she states, “Defendant maintains that the bills submitted are above usual and customary charges, and therefore Defendant is not responsible for payment of subject bills, as they are not reasonable, related, and necessary.” In an apparent acknowledgment that the litigation adjuster is not a competent witness on this opinion, “Defendant refers Plaintiff to the peer review submitted in response to Plaintiff’s First Request for Production of Documents.”
4. On February 4, 2005, the Defendant served a Notice of Filing Peer Review by Dennis Kogut, D.C. The peer review was done on August 9, 2003. In it, Dr. Kogut breaks down the invoices between medical and chiropractic treatment. He acknowledges that he cannot offer any opinion on the medical treatment. As for the chiropractic treatment, he agrees that some treatment was reasonable: “I opinionate that the chiropractic adjustment or an attended modality plus 3 additional modalities, 1 exercise unit and neuromuscular re-education would be reasonable and customary. Anything over this is excessive in nature.” Dr. Kogut concluded that of the total invoices of $9,985.00, the amount of $1,871.00 should be denied. The specific disputed charges are set forth on page 3 of Dr. Kogut’s peer review. Nevertheless, the insurer has failed to pay any of the bills.
5. On this point, the Plaintiff argues that it is entitled, at a minimum, to a summary judgment on the undisputed amount of $4,891.20, broken down as:
$ 9,985.00 Total Invoices
(2,000.00) Less Statutory Deductible
(1,871.00) Less Disputed Amount
$ 6,114.00
x 80% Statutory Liability
$ 4,891.20
6. However, the Plaintiff further argues that it should be entitled to credit for the $1,871.00 as well because United Automobile failed to obtain “reasonable proof” that it is not responsible for payment within 30 days of its receipt of the invoices. The Plaintiff further argued in its Motion that the insured has a “statutory burden to obtain reasonable proof.” The Defendant acknowledges that it did not obtain “reasonable proof” within 30 days, or prior to denial of payment for that matter, but it argues that it is not barred from thereafter contesting the invoice as being unreasonable, not related to the accident, or not medically necessary.
Conclusions of Law. Under Florida law, PIP benefits are “overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” Fla. Stat. §627.736(4)(b). This 30-day provides the insurer a safe harbor to avoid payment of any penalties, interest and attorney’s fees. However, failure to pay or obtain reasonable proof within 30 days does not operate as a waiver of the insurer’s right to thereafter contest that the bills as being unreasonable, not related to the accident, or not medically necessary. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). The problem for the insurer is not the failure to authenticate the claim within 30 days, although it might be the failure to obtain a medical report prior to the withdrawal of PIP benefits in this case. Fla. Stat. §627.736(7). So, while the insurer does not lose its right to contest whether a bill is reasonable, related or medically necessary if it fails to obtain “reasonable proof” within 30 days, it still must obtain a medical report before it can thereafter withdraw benefits. The Motion filed by the Plaintiff did not, however, argue that the Defendant withdrew benefits before it obtained a medical report, nor does it establish that no dispute exists as to whether United Automobile failed to obtain a medical report before withdrawing PIP benefits. See Rule 1.510(c) (movant must set forth in motion factual and legal basis for summary judgment). Therefore, although the Plaintiff is entitled to a summary judgment as to all medical bills, it is entitled to summary judgment as to only that portion of the chiropractic bills not controverted by Dr. Kogut’s peer review. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED IN PART. The undisputed facts establish that the Plaintiff is, at a minimum, entitled to $4,891.20 as set forth in this Order. Chiropractic bills in the amount of $1,871.00 remain disputed.
Pursuant to Rule 1.510(d), the Court finds that the material facts set forth in numbered paragraphs 1, 2 and 5 of this order have been established without substantial controversy, and at any further hearing or trial in this case, these facts shall be deemed established without the necessity of any further evidence or argument.
Finally, the few references in the Plaintiff’s Motion and Affidavit to Mr. “Linares” are clearly scrivener’s or clerical errors, and as a result, the Plaintiff’s ore tenus Motion to Correct pursuant to Rule 1.540(a) is hereby granted.
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