12 Fla. L. Weekly Supp. 963b
Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary expenses — Peer review report submitted by insurer in opposition to medical provider’s motion for summary judgment on issue of whether medical expenses are reasonable, related and necessary is not competent evidence that gives rise to disputed issue of material fact where report contains no authenticating provision and insurer has submitted no accompanying affidavit — Report created for sole purpose of litigation is inadmissible as business record
PROSPER DIAGNOSTIC CENTER, A/A/O MARIA ARCE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03 007286 SP 26 02. May 31, 2005. Bronwyn C. Miller, Judge. Counsel: Zack McWilliams. Oliver Wragg.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART
THIS CAUSE, having come before the Court upon Plaintiff’s Motion for Summary Judgment and the court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby grants Plaintiff’s motion in part on the following grounds:
Background:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on or about April 5, 2002. Following the accident, Maria Arce sought treatment from Plaintiff, PROSPER DIAGNOSTIC CENTER.
2. At all times material to this action, Arce was covered by an insurance policy issued by UNITED AUTOMOBILE CO. (hereinafter “UNITED”).
3. Plaintiff submitted an invoice to UNITED for medical services rendered in the amount of $948.67 for a date of service of July 8, 2002. UNITED failed to pay the bill and Plaintiff filed suit on September 23, 2003.
4. Plaintiff now moves for summary judgment on whether or not the subject medical services are reasonable, related, and necessary to the accident at issue.
5. In support of Plaintiff’s motion, Plaintiff has submitted the affidavit of Dr. Edward Suarez attesting to the reasonableness, relatedness, and medical necessity of the medical treatment provided in the instant case. Additionally, Plaintiff has submitted the affidavit of Sandra Suarez, Office Manager of Prosper Diagnostic, attesting to the reasonableness of the costs relating to the treatment rendered.
6. UNITED has filed a peer review report prepared by Dr. Peter J. Millheiser on July 15, 2002 in response.
Conclusions of Law
Summary Judgment Standard
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Plaintiff has met this burden through the submission of the affidavit of Arce’s treating physician. Accordingly, the burden shifts to UNITED to present competent evidence demonstrating a genuine issue of material fact. See, Holl, 191 So. 2d at 43 (“The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”).
Dr. Millheiser’s Affidavit and Peer Review Report
UNITED has not submitted an affidavit of Dr. Millheiser, only a peer review report. Plaintiff argues that the peer review report is not competent evidence that gives rise to a genuine issue of material fact for purposes of summary judgment. This Court agrees.
It is well-settled that hearsay alone will not defeat a motion for summary judgment. Florida Department of Financial Services v. Associated Industries Insurance Company, Inc., 868 So. 2d 600 (Fla. 1st DCA 2004) (the purpose of the requirement that summary judgment affidavits be based on personal knowledge is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment); In re: Forfeiture of 1998 Ford Pickup and Bobby E. Williams v. Carl Henderson, 779 So. 2d 450 (Fla. 2d DCA 2000) (affidavit containing only hearsay statements was insufficient to support summary judgment); Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992) (affidavit in support of summary judgment, recounting transactions reflected in settlements, deeds and judgments, was based on hearsay where no copies of public records were presented); Topping v. Hotel George V, 268 So.2d 388 (Fla. 2d DCA 1972) (attorney’s affidavit that he was familiar with his client’s records and that the records reflected certain information constituted hearsay and could not support summary judgment); Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. 1st DCA 1998) (court may not consider unauthenticated document in ruling on motion for summary judgment, even when it appears that such document, if properly authenticated, may have been dispositive); Ferris v. Nichols, 245 So. 2d 660 (Fla.4th DCA 1971) (affidavits, to which notes were referred to therein were not attached, were insufficient to warrant a summary judgment).
Section 92.525 Fla.Stat. proscribes those requirements governing the verification of documents as follows:
(1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or
(b) By the signing of the written declaration prescribed in subsection (2).
(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration. . . Section 92.525 Fla.Stat.
Dr. Millheiser’s report contains no authenticating provision and UNITED has submitted no accompanying affidavit in compliance with the applicable provision. Furthermore, Dr. Millheiser’s report is a document created for the sole purpose of litigation, thus is inadmissible as a business record pursuant to 90.803(6), Florida Statutes. See, McElroy v. Perry, 753 So. 2d 121, 126-27 (Fla. 2d DCA 2000) (“Dr. Phillips was hired by Perry’s insurance carrier to examine her for the purpose of assisting the carrier in its determination of whether the treatment Perry was obtaining was “reasonable, related, or necessary” pursuant to [S]ection 627.736(7). Thus, the carrier’s motivation for requesting the examination was a financial one that placed the physician in the same adversarial posture in relation to the insured as that of a physician hired by an opposing party to perform an IME for the purpose of litigation.”). Thus, Dr. Millheiser’s report is not appropriate for consideration in this proceeding.
Plaintiff has met its burden for summary judgment on reasonable, related, and necessary and UNITED has filed no affidavit in response. Thus, summary judgment as to whether Arce’s medical expenses are reasonable, related, and medically necessary is hereby GRANTED.
Plaintiff has further moved for summary judgment regarding whether or not the assignment of benefits in this case was sufficient and/or timely. The Court finds that this is a question of fact which is appropriate for a jury determination. Thus, summary judgment as to standing is hereby DENIED.
All other affirmative defenses have been withdrawn.
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