12 Fla. L. Weekly Supp. 249a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary medical expenses — Insurer is precluded from attempting to create genuine issue of material fact on issue of whether expenses were reasonable, related, and necessary by using peer review performed more than 30 days after receipt of medical expenses where there is no other reasonable proof that supports denial or withdrawal of benefits — Summary judgment is granted in favor of insured where insured met burden of establishing prima facie case that medical expenses were reasonable, related, and necessary through affidavit of treating physician; and insurer, which presented only invalid peer review report and testimony of litigation adjuster, failed to present sufficient countervailing evidence to rebut insured’s case — Where insurer never raised fact that insured does not appear as passenger on police report as affirmative defense, that fact alone is insufficient evidence supporting denial or withdrawal of benefits in absence of deposition testimony from officer or other evidence
NELSON MILIAN, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-4020 CC 25 (2). November 30, 2004. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Dean A. Mitchell. Nicole Malick.
ORDER AND FINAL JUDGMENT FOR PLAINTIFF
THIS CAUSE came before the court on November 2, 2004, after due notice to the parties, on Plaintiff, NELSON MILIAN’s, Third Motion for Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED that:
1. Plaintiff’s Third Motion for Final Summary Judgment is GRANTED. The only remaining issue for determination, all other issues having been previously disposed of, was whether the subject medical expenses were reasonable, related and medically necessary. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, and it appearing there is no genuine issue of material fact, Plaintiff is entitled to Final Summary Judgment as a matter of law.
FINDINGS OF FACT
2. The Plaintiff filed a PIP lawsuit against the Defendant on 4/17/02 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 6/19/01.
3. The Plaintiff, Nelson Milian, sought and received medical treatment at Santa Fe Medical Center as a result of a car accident that occurred on 6/19/01. Mr. Milian received the above referenced therapy from 6/21/01 through 10/1/01 and incurred medical expenses in the amount of $7,840.00.
4. In addition, Mr. Milian received an initial and final orthopedic evaluation with Dr. Ricardo Presas at X-Ray and Diagnostic. Mr. Milian received these consultations on 8/27/01 and 10/26/01. The total amount of charges for X-Ray and Diagnostic in regards to the treatment and diagnostic testing rendered to Mr. Milian as a result of the 6/19/01 accident is $1,385.00.
5. In support of his motion for summary judgment, Plaintiff filed the affidavit of Julia Deulofeu, who is records custodian and responsible for the billing and collections at Santa Fe Medical Center and X-Ray and Diagnostic. Ms. Deulofeu established that all of the subject medical expenses were reasonable, usual and customary.
6. The Plaintiff filed the affidavit of Nelson Milian which established that he was in the subject accident, injured his neck, back, and left wrist, and received medical care and treatment at Santa Fe Medical Center for the subject dates of service and that during the course of his treatment, he underwent x-rays of the skull, cervical spine, dorsal spine, lumbar spine and left wrist at X-Ray and Diagnostic. Further, he received an initial and final orthopedic evaluation with Dr. Ricardo Presas at X-Ray and Diagnostic. Finally, he testified that during the treatment he received at Santa Fe Medical Center and X-Ray Diagnostic, he did not sustain any other traumatic injuries, received the above referenced therapy from 6/21/01 through 10/1/01 and incurred medical expenses in the amount of $7,840.00, and incurred $1,385.00 in medical bills from X-Ray and Diagnostic in regards to the treatment and diagnostic testing rendered to him as a result of the 6/19/01 accident.
7. The Plaintiff also filed the affidavit of Francisco Huertas, M.D., who established that he examined Nelson Milian, recommended the treatment that was billed, supervised all of the treatment at Santa Fe, referred Nelson Milian for the diagnostic testing and orthopedic evaluations that were done at X-Ray and Diagnostic, and that all of the treatment, therapy and diagnostic testing were medically necessary and related to the subject accident on 6/19/01 and assisted him in my treatment, diagnosis and prognosis of the patient. Further, he testified that all of the charges are reasonable, usual and customary.
8. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Clara Noda taken on 1/21/03. She has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
9. According to Ms. Noda, the Defendant received medical bills from X-Ray and Diagnostic and Santa Fe Medical Center. The Defendant received $1,385.00 in medical bills from X-Ray and Diagnostic and $7,840.00 in medical expenses from Santa Fe Medical Center. As of this date, none of these bills have been paid by Defendant.
10. According to the adjuster, the bills reflected on line 7 of the PIP log from Santa Fe Medical Center for dates of service 9/17/01 through 10/10/01 in the amount of $1,625.00 were not paid because of late billing. The bills were date stamped on 4/2/02, which was more than 30 days from the date of service. The Plaintiff does not seek payment of these bills and they are withdrawn from the subject lawsuit and not an issue in the case.
11. According to the adjuster, NELSON MILIAN attended a compulsory physical examination on 10/11/01 with Dr. Vincent Lopez and M.D. benefits were suspended on 11/1/01, which is after any of the subject dates of service at issue in this lawsuit.
12. Ms. Noda asserts it is her “professional opinion” the treatment rendered to Nelson Milian was not reasonable, related or necessary.
13. The Defendant filed and relies on the affidavit of Clara Noda dated 7/10/03 to assert Dr. Peter Millheiser issued a report dated 2/14/03 alleging in his opinion, “several of the office visits and some of the plaintiff’s physical therapy was unreasonable, unrelated and unnecessary to the accident.” The Defendant attached Dr. Millheiser’s report to the affidavit, however, never filed an Affidavit from Dr. Millheiser and the report attached to the affidavit as Exhibit A is not self- authenticating since it is not notarized and does not state that it was written under penalty of perjury and that all facts and opinions are true. The Defendant also filed an Affidavit of Clara Noda dated 7/22/04 stating that it was attaching the Peer Review of Dr. Millheiser to the affidavit, however, Plaintiff’s counsel never received the attachments to the Affidavit and there was no affidavit in the Court’s file.
14. Plaintiff’s counsel objected to the admissibility of the Dr. Millheiser “Peer Review” on the grounds of hearsay, however, this Court did not need to rule on that issue since the report was issued more than one (1) year after receipt of all of the subject medical expenses and did not consider the report as competent evidence on this basis (see opinion below).
ISSUES OF LAW
15. 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.
16. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to investigate and obtain 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.
17. 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).
18. The Defendant has failed to establish that it had reasonable proof that 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 have any report from a physician in the same licensing chapter as the treating physicians “on file” prior to the hearing of the summary judgment, stating that no further treatment was medically necessary as required by § 627.736(7) which applies to any of the subject medical expenses, and all outstanding medical expenses remain due and owing plus interest from 30 days after receipt of each bill up to the present.
19. The appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11 Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) further supports the Plaintiff’s Motion for Summary Judgment. In Cabello, the injured insured obtained treatment from the appellee-plaintiff who submitted claims to United Automobile. The trial court granted summary judgment in favor of the plaintiff on the issues of countersignature and whether the treatment was reasonable, related and necessary. The plaintiff submitted the affidavit of the treating physician to establish the benefits sought were reasonable, related and necessary. United Automobile submitted letter from a claims adjuster stating the IME physician felt the treatment was not reasonable, related or necessary. The appellate court affirmed the entry of summary judgment and stated, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.”
20. Also, United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position. In Mendoza, the insured sustained injuries in an automobile accident on 3/25/01. Thereafter he obtained treatment from various providers who submitted claims to United Automobile. The plaintiff sued to recover the PIP benefits and moved for summary judgment. The plaintiff filed an affidavit of a medical doctor who concluded treatment provided to the insured was reasonable, related and necessary to injuries sustained as a result of the subject accident. The trial court granted summary judgment in favor of the plaintiff.
21. The defendant appealed claiming the trial court abused its discretion in granting summary judgment. The appellate court affirmed the entry of summary judgment finding once the plaintiff successfully met its burden of establishing the non-existence of an issue of material fact, the burden switched to the defendant to demonstrate the existence of such an issue. The appellate court determined the defendant failed to meet its burden. The defendant did not file an affidavit or any other countervailing evidence to refute the medical treatments as being reasonable, related and necessary. The appellate court also found the deposition testimony of the defendant’s adjuster concerning the IME physician’s report failed to create a genuine issue of material fact.
22. 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 competent 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).
23. This Court finds that as a matter of law, United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3rd DCA 1998) precludes the Defendant from attempting to create a genuine issue of material fact on the issue of whether the subject medical expenses were reasonable, related and necessary by using a “Peer Review” from a doctor that was performed outside of 30 days from receipt of the subject medical expenses where there is not other “reasonable proof” that supports the denial or withdrawal of benefits.
24. Florida Statute § 627.736(4) addresses a PIP insurance company’s obligation to pay personal injury protection benefits within thirty days of receipt of written notice of the fact of a covered loss and the amount of same. Section 627.736(4)(b) states in part:
(b) Personal injury protection insurance benefits paid pursuant to this sections shall be 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.
However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer.
25. The statute requires the insurer of a motor vehicle to take some affirmative action within thirty days of receiving notice of the fact of an accident and receipt of any medical bill to establish that it is not responsible for payment of same. See Amador v. United Automobile Ins. Co., 748 So. 2d 307 (Fla. 3rd DCA 1999) (“However, we stress that the burden is clearly upon the insurer to authenticate the claim within the statutory time period.” citing Fortune Ins. Co. v. Pacheco, 695 So.2d 394 (Fla. 3rd DCA 1997) (The burden is upon the insurer to authenticate the claim within the statutory time period and that a unilateral determination that reasonable proof of claim had not been established could not be used to circumvent the obligation to pay within thirty days.)); See Palmer v. Fortune Ins. Co., 776 So. 2d 1019 (Fla. 5th DCA 2001) (holding that the burden is on the automobile insurer to authenticate a claim for PIP benefits within 30 days and there is no tolling provision of the 30 day period for payment of PIP claims).
26. In United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3rd DCA 1998), the Third District Court held that an insurer’s termination of PIP benefits without a written report by a physician in the same licensing chapter was ineffective. The Court relied upon the plain language of § 627.736(7)(a) which requires an insurer to first obtain a physician’s report before refusing to pay further medical bills.
27. It is important to note the Viles decision of the Third District Court is binding case law, has not been overturned by the Supreme Court opinion in United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001), and is the law of this District and must be followed.
28. The Supreme Court’s decision in United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2001) does not alter the insurer’s statutory obligation to obtain reasonable proof within 30 days from receipt of the claim. The narrow holding in Rodriguez stands only for the proposition that the insurer is not barred from contesting the claim if the insurer fails to obtain reasonable proof within the statutory time period. Rodriguez, however, does not alter the insurer’s statutory burden to authenticate the claim within thirty days nor does Rodriguez remove the insurer’s statutory obligation to obtain reasonable proof.
29. In the instant case, the Plaintiff met its burden of proof of establishing a prima facie case that the subject medical expenses were reasonable, related and necessary. The Plaintiff presented medical expert witness testimony by means of an affidavit from Francisco Huertas, M.D. which established that the subject medical expenses were reasonable, related and necessary. The Defendant failed to substantially impeach Dr. Huertas or present any sufficient countervailing evidence to rebut the Plaintiff’s case.
30. The only report the Defendant presented under the same licensing chapter as Dr. Huertas stating that the medical services were not medically necessary, reasonable or related was a so-called “Peer Review” performed by Dr. Peter Millheiser. This paper review was performed on February 14th, 2003, over one (1) year from receipt of all of the medical expenses and is not a “valid report” within the meaning of Section 627.736(7)(a), Florida Statutes. This was legally insufficient as a matter of law and the Court refuses to consider this report when ruling on the Plaintiff’s motion. See United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998); Amador v. United Automobile Ins. Co., 748 So. 2d 307 (Fla. 3rd DCA 1999) (“The insurer cannot use its investigative rights to extend the 30-day period without reasonable proof that it is not responsible for the claim.”).
31. The testimony from the Defendant’s litigation adjuster, Clara Noda, was legally insufficient to rebut or refute the testimony from Dr. Huertas on the issue of whether the subject medical expenses were reasonable, related or necessary. See United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004), and United Automobile Insurance Company v. Rose, Fla. 11th Circuit App. Div., September 14, 2004, Rehearing Denied, October 29, 2004. Further, because her initial affidavit was prepared almost two (2) years after receipt of the bills, it is insufficient to establish “reasonable proof” that the charges were excessive or above usual and customary.
32. In addition, the Defendant argued that because the police report did not include the Plaintiff’s name, the Court should deny the Plaintiff’s motion where the only issue is whether the treatment is reasonable, related and necessary. The Defendant asserts that it filed the affidavit of Clara Noda dated 7/22/04 and attached a copy of the report to the affidavit. The Plaintiff’s counsel objected to this document on the basis of hearsay and privilege pursuant to Section 316.066(4), Fla. Stat., which provides an evidentiary privilege for written reports made by persons involved in auto accidents “for any statement made by such persons to a law enforcement officer” for the purpose of completing the report. Section 316.066 provides that “no such report or statement shall be used as evidence in any trial, civil or criminal.”
33. In addition, Plaintiff’s counsel pointed out to the Court that the report was not attached to the copy of the affidavit served on the Plaintiff and the Court could not locate a copy of the report in the court’s file. The Court considered the evidence that NELSON MILIAN does not appear on the report based on defense counsel’s representations to same and based on Clara Noda’s allegation in her affidavit that he does not appear as a “passenger” on the report over the Plaintiff’s objection. However, the Court finds that as a matter of law, this fact alone does not establish “reasonable” proof that the subject medical expenses are not reasonable, related or necessary. The Defendant never raised this issue as an affirmative defense and without more support such as a deposition testimony from the officer or other evidence, this fact alone is insufficient evidence supporting a denial or withdrawal of benefits.
34. The undisputed evidence “on file” at the time of the hearing, is that all subject medical expenses except the ones on line 7 of the PIP log were billed and submitted to UNITED AUTOMOBILE INSURANCE COMPANY in accordance with the PIP statute. It is undisputed that the medical bills and treatment at issue are reasonable, medically necessary, and related. UNITED AUTOMOBILE does not have reasonable proof that the subject medical bills are unreasonable, unnecessary and unrelated.
35. The Defendant has received $1,385.00 in medical bills from X-Ray and Diagnostic and $7,840.00 in medical expenses from Santa Fe Medical Center. As of this date, none of these bills have been paid by Defendant. Excluding the dates of service 9/17/01 through 10/10/01 in the amount of $1,625.00 that UNITED AUTOMOBILE claims were billed untimely under the PIP statute, there remains $6,215.00 due and owing in medical expenses from Santa Fe Medical Center and $1,385.00 in medical expenses from X-Ray and Diagnostic.
36. The Defendant does not have any basis under its contract or §627.736(4) or (7) to establish that it is not responsible for the medical expenses in the amount of $7,600.00.
37. Because there does not exist any question of material fact regarding the related, reasonable and necessary medical expenses incurred by NELSON MILIAN, and submitted to UNITED AUTOMOBILE by the subject providers, and the Defendant’s failure to pay the Plaintiff’s medical bills at full 80% pursuant to the terms of the policy and §627.736, the Plaintiff is entitled to Summary Judgment.
38. The Plaintiff is entitled to Final Summary Judgment in the amount of $7,600.00 at 80% which equals $6,080.00 plus statutory interest in the amount of $1,286.29, for a total amount of $7,366.29, for which let execution issue.
39. This Court finds that the Plaintiff is entitled to attorney’s fees and costs pursuant to §§ 627.736(8) and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly. [12 Fla. L. Weekly Supp. 481a]
40. Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. See §§ 627.736(8), 627.428(1); see also Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502, 503 (Fla. 1st DCA 1974). That is, under PIP law, the focus is outcome-oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees. It is the incorrect denial of benefits, not the presence of some sinister concept of “wrongfulness,” that generates the basic entitlement to the fees if such denial is incorrect. See Ivey v. Allstate Insurance Co., 774 So. 2d 679, 684 (Fla. 2001).
* * *
