12 Fla. L. Weekly Supp. 1082a
Insurance — Personal injury protection — Notice of loss — Timeliness — Late notice defense must fail because insurer was not deprived of opportunity to timely investigate claim where insurer received notice 32 days after initiation of treatment but waited four weeks after receipt of notice to send PIP package, insurer did not schedule physical examination and examination under oath until more than two months after receipt of notice, insurer did not deny claims from other medical providers based on late notice but instead applied bills to deductible, and insurer did not assert late notice defense in response to pre-suit demand letter
OPEN MRI OF MIAMI-DADE, LTD., (a/s/o Ronald Rose), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 03-27072 SP 23 (1). April 27, 2005. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, North Miami, for Plaintiff. Sebastian Lissa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on April 27, 2005 on the Plaintiff’s Motion for Final Summary Judgment, after hearing argument of the parties and being fully advised of the premises thereof, the Court finds as follows:
1. That the insured Ronald Rose was involved in an automobile accident on June 15, 2002.
2. On the date of said accident the Defendant insured Ronald Rose for PIP insurance benefits.
3. On September 24, 2002 the Plaintiff rendered MRI services, CPT code 72141. That the Plaintiff received from Ronald Rose an assignment of benefits.
4. Upon the uncontroverted sworn affidavit of Dr. Marshall Bronstein, D.C., the Court finds that the MRI was requested by Dr. Bronstein, D.C. and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Ronald Rose.
5. The Defendant present no countervailing expert opinion affidavit in opposition to that of Dr. Bronstein.
6. That Plaintiff’s charges are subject to the fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat. That at the time the services were rendered the Plaintiff was not an accredited facility and is entitled to 175% of the 2001 Medical fee schedule for CPT code 72141 which amount is $1,045.74. Accordingly the amount due the Plaintiff is $836.59 plus interest, attorney’s fees and costs.
7. That Summary Judgment in favor of the Plaintiff is granted as to the defenses of countersignature, timely notice of loss and the defense that the MRI bill is not payable due to the fact that the HCFA form sets forth an amount greater than that which collectable pursuant to the MRI fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat. As to the timely notice defense the unrebutted evidence is that 32 days of the date of the accident the treating physician provided the Defendant with a written notice of initiation of treatment, the Defendant waited another 4 weeks after the accident to send out its standard PIP package, the Defendant did not schedule a physical examination of the insured until 10 weeks after receipt of the notice of initiation of treatment with the notice of such exam not having been sent until 6 weeks after receipt of the notice of initiation of treatment; on July 19, 2002 the insured’s attorney’s sent a letter of representation to the Defendant; that the Defendant issued EOB to other medical provider’s which did not assert a late notice defense but instead advised that bills had been applied to the patient’s deductible; in response to the presuit demand letter sent by the Plaintiff pursuant to Section 627.736(11), Fla. Stat., the Defendant did not advise that the claim was being denied due to late notice despite the fact that the Defendant’s form response has a place to indicate that payment has been denied due to late notice; and, finally, the Defendant did not even conduct the EUO of Mr. Rose until October 17, 2002 which date is over two months after the date that the Defendant received the notice initiation of treatment.
Based upon the foregoing facts the Court finds that as a matter of law the late notice defense must fail as no reasonable view of the facts could support a defense of late notice in so much as the Defendant was in no way deprived of its opportunity to timely investigate the claim of its insured and in fact the Defendant conducted a full investigation of the claim.
Based upon the foregoing it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is Granted.
In accordance with the above findings, IT IS HEREBY ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, OPEN MRI OF MIAMI-DADE, LTD. (as assignee of Ronald Rose) of 19082 N.E. 29th Avenue, Aventura, FL 33180, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $836.59, as outstanding PIP benefits, and the amount of $141.02 (879 days) as statutory interest commencing on December 1, 2002, for a total judgment against the Defendant in the amount of $977.61 which amount shall bear interest at the rate of 7% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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