12 Fla. L. Weekly Supp. 384b

Insurance — Personal injury protection — Coverage — Where medical provider established prima facie case of necessity of MRI and authenticity of assignment of benefits, and insurer failed to carry burden of establishing question of fact and admits it has no basis to challenge authenticity of assignment, summary judgment is granted in favor of provider

PEMBROKE PINES MRI, INC., Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-03-019958-49. January 26, 2005. Kathleen D. Ireland, Judge. Counsel: Charles J. Kane, Kane & Kane, Boca Raton. Thomas A. Freehling, Coral Gables.

Final Summary Judgment for Plaintiff

On January 26, 2005 the Court heard the Plaintiff’s Motion for Summary Judgment. Counsel for the parties were present and presented argument.The Record

The record includes:

1. Transcript and exhibits of deposition of Defendant’s representative, Arian Alvarez, was deposed on May 25, 2004.

2. Affidavit of Plaintiff’s representative, Rosina Kizer.

3. Affidavit of the treating physician.

The Defendant submitted no additional proof for the Court to consider and relied on argument.

Undisputed Facts

Plaintiff sues Defendant for unpaid PIP benefits for MRI services rendered on May 5, 2003 to Seyphus N. Troutman, Defendant’s insured, in connection with diagnosis and treatment of injuries sustained in a motor vehicle accident that occurred March 30, 2003. Plaintiff submitted its claim on or about May 13, 2003 and Defendant received it on May 22, 2003. Defendant responded with a form letter dated June 30, 2003 that asserted the submission failed to put the Defendant on notice citing certain provisions of law. The Defendant did not try to fulfill any other investigative duty.¹ The Plaintiff gave proper pre-suit notice and demand. Defendant failed to pay thereafter. Plaintiff filed suit in October 2003.

Seyphus Troutman was Defendant’s covered insured injured in the motor vehicle accident as alleged. Plaintiff’s claim was timely submitted on the correct form. Plaintiff’s claim submission was sufficient to give notice of the nature and amount of the claim. The adjustor determined that Plaintiff was only entitled to 175% of Medicare Part B because the claim submission did not include credentials and because the Defendant did not ask for them. The adjustor used the 2003 Medicare Part B Schedule, not the 2001 schedule adjusted for CPI, and did not pay the claim. The PIP log (identified as Exhibit 3) lists claims received in the order received, all of which are not paid. The Defendant proffered no basis to deny any of the bills listed on the PIP log. Defendant proffered no basis to assert the subject MRI was not medically necessary. Mr. Alvarez, Defendant’s representative, is satisfied that the MRI did happen. He confirmed on review of the claim file that he has no basis to contest medical necessity, the happening of the accident, Troutman’s injury in the accident, and that this MRI happened.

The Defendant has withdrawn the first affirmative defense, ¶5 of the answer asserting counter-signature affirmative defense. The Defendant has withdrawn the second affirmative defense, ¶6 asserting fraud and improper coding. The Defendant has no basis to assert the signature on the proffered assignment is not that of Mr. Troutman. At his deposition Mr. Alvarez could not think of any other reason to contest the bill.

The affidavit of Plaintiff’s representative, Rosina Kiser, establishes Plaintiff has the necessary credentials to entitle it to 200% of Medicare Part B rates, demonstrates those rates, and authenticates the assignment. The affidavit of Alan H. Mandell, D.C., the treating physician establishes the testing was medically necessary, all the treatment provided by his office was medically necessary, and all his charges were reasonable in amount.

Defendant alleged 3 affirmative defenses: (1) lack of countersignature; (2) fraudulent billing and improper coding; and (3) lack of standing challenging assignment. The first two defenses were withdrawn by stipulation.

Question Presented

Where the plaintiff moves for summary judgment and has established a prima facie case in an action for breach of contract for nonpayment of overdue assigned statutory PIP benefits, does the burden of going forward with the evidence to establish a scintilla of a question of fact shift to the nonmoving party?

Analysis

Defendant cites Koresko v. Coe, 683 So.2d 602 (Fla. 2d DCA 1996) for the proposition that the nonmoving party does not have to proffer evidence to counter the plaintiff’s proffer of expert testimony by way of affidavit in a motion for summary judgment. Koresko was an action for libel, not an action brought to recover overdue statutory PIP benefits. That court merely observed that the moving party had not carried the initial burden of establishing nonexistence of a genuine question of fact. Koresko answered interrogatories propounded by Coe that disputed making the defamatory statements. Coe did not establish the absence of that question of fact. Koresko is inapt and does not support the proposition that only a jury can determine to accept or reject an expert’s affidavit. Indeed, the governing case law is contrary.

To create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, Defendant is required to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999) (jury could not reject uncontroverted medical testimony on permanent injury); Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993) (failure to impeach uncontroverted expert testimony); Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992) (Jury of lay persons cannot be credited with having technical expertise to totally disregard expert medical opinion in the absence of evidence which clearly and directly contradicts expert opinion or the facts upon which that opinion is predicated). The party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) (citing Jarrell). The Defendant has proffered nothing tending to impeach Dr. Mandel’s testimony in his affidavit, nothing to impeach him and nothing in direct conflict.

The burden of going forward after a prima facie case is demonstrated is well established:

“On motion for summary judgment, if the movant sustains his initial burden of proof, the opponent then has the burden of coming forward with evidence establishing genuine material factual issues. Where as here the opponent fails to come forward with any affidavit or other proof in opposition to the motion for summary judgment, the movant need only establish a prima facie case, whereupon the court may enter its summary judgment. Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780.” Latour Auto Sales v. Stromberg-Carlson Leasing Corporation, 335 So.2d 600, 601 (Fla. 3rd DCA).

Latour relied on a Supreme Court ruling. Latour was cited with approval by the Fourth District Court of Appeals in Steeprow Enterprises, Inc. v. Monier Roof Tile, Inc., 644 So.2d 168 (Fla. 4th DCA 1994).

Defendant’s reliance on Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) misses the point. Derius merely held that a trial court was not required to define the term “necessary” in its jury instructions leaving the meaning of that to the jury in its deliberations. Indeed, even the Fourth District noted the distinction in Derius when it said at 273:

Derius points to the language of section 627.736(7)(a), which provides that

[a]n insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.

This language is part of the independent medical examination requirement of section 627.736(7) which is “intended to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid.” U.S. Security Ins. Co. v. Silva, 693 So.2d 593, 596 (Fla. 3d DCA 1997). The quoted language from section 627.736(7)(a) sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria. If the insurer were to act without complying with such a procedural requirement, any termination of payment would be ineffective. In this procedural hurdle, we do not discern a legislative intent to alter the burden of proof in a lawsuit for PIP benefits.

[Emphasis supplied]

Subsections (4)(b) and (7) of the PIP statute operate in separate and distinct spheres as observed by Justice Pariente in her concurring opinion in United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 88 (Fla. 2001):

Although I agree with the dissent that the purpose of the no-fault statutory scheme is to provide “swift and virtually automatic payment [to] the injured insured,” Ivey v. Allstate Ins., Co., 774 So.2d 679, 683-84 (Fla.2000), the purpose of the no-fault scheme does not logically extend to require an insurer to automatically pay for bills for which the insurer is not responsible. I thus take issue with the dissent’s suggestion that the majority opinion renders the “reasonable proof” language of section 627.736(4)(b) and the limitation on withdrawal of payment for treating physicians in section 627.736(7), Florida Statutes (1997), “meaningless and without any field of operation.” Dissenting op. at 91.

Section 627.736(4) provides in pertinent part:

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss. . . . 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 *89 notice has been furnished to the insurer. . . .

(c) All overdue payments shall bear simple interest at the rate of 10 percent per year.

(Emphasis added). I agree with Judge Klein’s interpretation of the statute:

[T]he thirty-day period in section 627.736(4) applies only to benefits which are reasonable and necessary as a result of the accident. Section 627.736(4), Florida Statutes begins with the words “benefits due” and states in subsection (b) that “personal injury protection benefits paid pursuant to this section shall be overdue if not paid within thirty days.” If an insured submits a bill for medical treatment which is not related to the accident, there are no “benefits due.” If benefits are not due, they cannot be “overdue.” AIU Ins. Co. v. Daidone, 760 So.2d 1110, 1112 (Fla. 4th DCA 2000). [FN 13]

FN 13. The First and Fifth Districts are in agreement with the Fourth District’s interpretation of the statute. See State Farm Mut. Auto. Ins. Co. v. Jones, 789 So.2d 504, 508 (Fla. 1st DCA 2001); Jones v. State Farm Mut. Auto. Ins. Co., 694 So.2d 165, 166 (Fla. 5th DCA 1997).

The statutory penalty of ten percent interest for “overdue” payments thus comes into play if the insurer fails to pay the bill within thirty days after written notice and did not have reasonable proof within that thirty-day period to establish that it was not responsible for the bill. However, the penalty for “overdue” payments, which runs from the expiration of the thirty-day period, applies only if the insurer is ultimately found liable for the claim. The insurer does not forfeit its ability to contest payment by its failure to obtain reasonable proof in the thirty-day period.

As for section 627.736(7)(a), this statute deals exclusively with the requirements for withdrawal of payment:

An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary. § 627.736(7)(a) (emphasis added). This statute requires that a PIP insurer obtain a medical report as a condition precedent to withdrawing benefits. Nothing in the language of section 627.736(4)(b) suggests that the “reasonable proof” necessary to avoid “overdue” status is limited to the “report” necessary to “withdraw” payment of a treating physician under section 627.736(7)(a). See § 627.736(4)(b). In my view, this interpretation of the “reasonable proof” requirement in section 627.736(4)(b) and the medical report requirement of section 627.736(7)(a) give meaning and effect to both statutory provisions, with each section operating independently of the other.

ANSTEAD, J., concurs.

The Plaintiff established its prima facie case. The Defendant has the burden of going forward to establish a question of fact and failed to do so. The affidavit of Rosina Kizer authenticates a valid assignment. Defendant admits it has no basis to challenge the authenticity of that document.

Judgment is granted in favor of the Plaintiff in the principal amount of $1014.11 applying the participating schedule for 2001 adjusted for a 4% CPI increase together with prejudgment interest from May 22, 2003 in the amount of $113.22, making a total sum of $1127.33, for which let execution issue. Plaintiff is entitled to reasonable attorneys fees and costs to be determined hereafter upon timely motion for which jurisdiction is reserved.

__________________

¹The law imposes on insurers an obligation to respond to valid claims with payment within 30 days after receipt of the claim. F.S.§627.736(4)(b); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). To assist insurers in fulfilling that investigative duty the No-Fault Law provides a means to toll the 30 day period for payment by timely and properly requesting certain additional information necessary to process a claim. F.S.§627.736(6). The law requires adherence by insurers to an ethics code that requires insurers to fully and thoroughly investigate claims before making a final adjustment decision. F.S.§626.878; Fla. Admin. Code Ch. 4-220.201.

* * *