12 Fla. L. Weekly Supp. 875a
Insurance — Personal injury protection — Coverage — Medical expenses — Magnetic resonance imaging — Where affidavit of physician who requested MRIs supports finding that MRIs were reasonable, related and necessary, and insurer filed only unauthenticated hearsay report in opposition, medical provider that performed MRI is entitled to payment for MRI based on Medicare fee schedule — Demand letter — Insurer’s denial of bills due to lack of countersignature relieved provider of necessity of serving pre-suit demand letter — Examination under oath — Failure to attend — Where EUO was not scheduled to occur within 30 days of insurer’s receipt of bills, defense of failure to attend EUO is not available — Further, suspension of benefits prior to dates of scheduled EUOs, based on independent medical examination, constituted anticipatory breach that discharged insured’s duty to attend EUO — Final summary judgment entered in favor of provider
PRESGAR MEDICAL IMAGING, d/b/a CENTRAL MAGNETIC IMAGING, (a/s/o Juan Reynoso), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 01-25583 SP 23. May 11, 2005. Caryn Canner Schwartz, Judge. Counsel: Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami, for Plaintiff. Darien Doe, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court on January 31, 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 Juan Reynoso was involved in an automobile accident on May 18, 2001.
2. On the date of said accident the Defendant insured Juan Reynoso for PIP insurance benefits.
3. On August 14, 2001 the Plaintiff rendered MRI services, CPT code 72141 and 72148. That the Plaintiff received from Juan Reynoso an assignment of benefits.
4. Upon the sworn affidavit of Dr. Steven Halegua, D.C. the Court finds that the MRIs were requested by Dr. Halegua, D.C. and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Juan Reynoso.
5. The Defendant presented no competent countervailing evidence in opposition to the affidavit of Dr. Halegua. The Defendant merely filed the unauthenticated hearsay report of Dr. Calixto Alfonso, D.C. in opposition to the Plaintiff’s Motion for Summary Judgment.
6. That Plaintiff’s charges are subject to the fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat. Because the services were provided after June 19, 2001 and before November 1, 2001 the Plaintiff is entitled to payment based upon 200% of the 2001 Medical fee schedule for CPT code 72141 ($1,195.14) and 72148 ($1,290.98) for a total of $2,486.12. Accordingly the amount due the Plaintiff is $1,988.89 (80% x $2,496.12) plus interest, attorney’s fees and costs.
7. That Summary Judgment in favor of the Plaintiff is granted as to the defenses of countersignature, that the MRI services were not reasonable, related or necessary, and that the Plaintiff failed to comply with the pre-suit notice requirement set forth in Section 627.736(11), Fla. Stat., and the defense based upon the alleged failure to the insured to attend a properly scheduled Examination under Oath. See cases cited in Plaintiff’s Motion For Summary Judgment.
As to the presuit notice requirement the Defendant failed to raise said defense in its original answer. Said defense was contained within a proposed amended answer which was filed on March 8, 2004 together with a motion to amend the answer. As of the date of the hearing on the Plaintiff’s Motion for Summary Judgment the Defendant has failed to set a hearing on its motion to amend the answer and therefore the proposed amended answer is not before the Court. Nonetheless, the Court finds that this matter was filed on December 13, 2001 and that on two occasions prior to the filing of the lawsuit the Defendant forwarded correspondence to the Plaintiff advising that the bills were not payable due to a lack of countersignature. Under the Section 627.736(11), Fla. Stat. (2001) such a denial relieved the Plaintiff of the necessity of serving a pre-suit demand.
With regard to the EUO defense the Court finds that said defense is unavailable to the Defendant as a matter of law. The EUO was not scheduled to occur until July 20, 2001 which was not within 30 days of the Defendant receipt of bills from the insured’s medical provider, South Miami Medical Center. The second EUO date of July 24, 2001 fell more than 30 days after receipt of the bills from the insured’s medical provider. As of the date of the motion for summary judgment the Defendant had not paid any of a insured’s medical bills. See United Automobile Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., Case No. 03-655 AP [12 Fla. L. Weekly Supp. 437a].
Furthermore, in accordance with the matter of Peachtree Casualty Insurance Company v. Walden, 759 So. 2d 7 (Fla. 5th DCA 2000) the Defendant by its own admission in its answer had suspended benefits for medical expenses incurred subsequent to July 5, 2001 as not being reasonable, related or necessary based upon the opinion of its examining physician. Such suspension or denial of benefits constitutes an anticipatory breach of the contract and such breach, having occurred prior to the date of the July 20, 2001 and July 24, 2001 EUOs, relieved the insured of the obligation to attend the EUO. See United Automobile Insurance Company v. Cicero Othro-Med Center, 12 Fla. L. Weekly Supp. 321 (Dade County Cir. Court Appellate Div.) wherein the Court held that a suspension of benefits based upon an IME constituted a repudiation of the contract and the insured’s duty to attend the EUO was accordingly discharged. In so ruling the Court relied upon the Peachtree decision.
Based upon the foregoing its is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED.
In accordance with the above findings, IT IS HEREBY FURTHER ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, PRESGAR MEDICAL IMAGING, INC. (as assignee of Juan Reynoso) d/b/a Central Magnetic Imaging, of 1860 N.E. Miami Gardens Drive, North Miami Beach, FL 33179, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $1,988.89, as outstanding PIP benefits, and the amount of $781.60 (1304 days) as statutory interest commencing on October 1, 2001, (11% which was interest rate in effect under Section 627.736(4)(c) on the date that the bills became overdue), for a total judgment against the Defendant in the amount of $2,770.49 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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