12 Fla. L. Weekly Supp. 254c
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Medical provider’s motion for summary judgment is granted where insurer failed to support answer and affirmative defenses asserting that medical services were not reasonable, related and necessary with affidavit; provider filed affidavit of physician swearing that services were reasonable, related and necessary, and insurer did not offer counter affidavit or otherwise respond to provider’s affidavit
PHYSICAL MEDICINE CENTER, INC., (As assignee of Leslie Herbert), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 03-1687-CC, Division L. November 30, 2004. Artemeus E. McNeil, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa, for Plaintiff. Jeffrey R. Davis, Tampa, for Defendant.
REVERSED. 13 Fla. L. Weekly Supp. 439a
ORDER GRANTING FINAL SUMMARY JUDGMENT FOR PLAINTIFF
THIS MATTER is before the Court on Plaintiff’s motion for summary judgment alleging that Defendant has not submitted sufficient evidence to contradict Plaintiff’s affidavit that the medical bills Plaintiff submitted to Defendant are reasonable, related and necessary.
FINDINGS OF FACT
On February 14, 2000, Leslie Herbert (hereinafter “Patient”) was in an automobile accident. Patient claims she suffered bodily injuries and as a result, incurred reasonable expenses for necessary medical care. Patient’s No-Fault insurance policy was effective during her accident and the policy provided Personal Injury Protection (PIP) coverage as well as medical coverage for Patient’s injuries. Defendant did not pay to Patient all of her claimed losses and as a result Plaintiff filed this suit on or about January 22, 2003 pursuant to F.S. §627.736(4)(b).
On or about August 20, 2004, Defendant filed an answer and affirmative defenses to Plaintiff’s complaint. Defendant asserted that Plaintiff’s medical services were not reasonable, necessary and related to Plaintiff’s automobile accident. Nevertheless, Defendant did not produce a sworn affidavit stating that Patient’s medical bills were not reasonable, necessary and related to Patient’s automobile accident.
On September 23, 2004, Plaintiff executed the affidavit of Dr. Robert C. Lupo in response to Defendant’s answer and affirmative defenses. Dr. Lupo specified that Patient’s medical bills were reasonable, necessary and related to Patient’s motor vehicle accident. Furthermore, the affidavit reported that Patient’s medical bills were properly coded according to the then current CPT code terminology. Defendant did not respond to this affidavit.
FINDINGS OF LAW
To warrant the grant of a motion for summary judgment, the affidavits in support of the motion, when considered together with the pleadings, depositions, answers to interrogatories and admissions on file, must be sufficient to establish that there is no genuine issue as to any material fact and that the movant is entitled to a summary judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
“Even though the pleadings themselves may create genuine issues of fact, where a good and sufficient affidavit shows the movant’s entitlement to summary judgment, and removes those issues, a summary judgment is proper.” 49 Fla. Jur. 2d Summary Judgment and Judgment on the Pleadings § 42.
“While it is true that appellants’ answer did set forth allegations tending to place in dispute issues of fact, these issues disappeared when the appellee filed its affidavit and the appellants failed to file a counter-affidavit.” Moore v. McAnn Plumbing Co., 139So. 2d 202 (Fla. 1962).
Although the pleadings did create one or more genuine issues of fact, when such pleadings are considered in light of the affidavit which was filed in support of the motion for summary judgment it cannot be said that there remained any genuine issues of fact which should properly be submitted to a jury. The only issues of fact which we conceive to have been directly raised by the pleadings disappeared when appellant filed his affidavit and appellee failed to file a counter affidavit. Appellant, under oath, sustained the material allegations of his complaint and denied the averment in appellee’s answer of an affirmative defense. MacGregor v. Hosack 58So. 2d 513 (Fla. 1952).
ANALYSIS
The Court carefully considered the pleadings, testimony and evidence of each party as well as the arguments of each counselor. Furthermore, the Court found all pleadings, testimony and evidence to be credible. Nevertheless, the Court finds that Plaintiff is entitled to summary judgment as a matter of law.
The Court is not certain why Defendant failed to support its answer and affirmative defenses with an affidavit swearing that Patient’s medical services were not reasonable, necessary and related. However, the Court is certain of the law. In response to Defendant’s answer and affirmative defenses, Plaintiff filed a sworn affidavit that the medical services provided to Patient were reasonable, necessary and related to Plaintiff’s automobile accident. Defendant did not offer a counter affidavit or respond in any way to the sworn affidavit of Dr. Lupo.
It is therefore ORDERED AND ADJUDGED that Plaintiff’s motion for summary judgment is hereby GRANTED. Court retains jurisdiction to determine attorney fees and costs.
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