12 Fla. L. Weekly Supp. 963a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider has submitted affidavit of physician attesting to reasonableness, relatedness and medical necessity of treatment and affidavit of provider’s officer manager attesting to reasonableness of charges, and insurer has filed nothing in response, provider’s motion for summary judgment is granted as to issue of whether expenses are reasonable, related and necessary — Provider’s motion for summary judgment is denied as to issue of whether insured provided insurer with written notice of accident because issue is question of fact for jury to determine
PROSPER DIAGNOSTIC CENTER, A/A/O SERGIO GALLEGO, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03 7231 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 September 24, 2002. Following the accident, Sergio Gallego sought treatment from Plaintiff, PROSPER DIAGNOSTIC CENTER.
2. At all times material to this action, Gallego 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 $960.52 for a date of service of November 5, 2002. UNITED failed to pay the bill and Plaintiff filed suit on September 22, 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 nothing 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 Gallego’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.”). UNITED has failed to submit anything in opposition to Plaintiff’s affidavits.
Thus, summary judgment as to whether Gallego’s medical expenses are reasonable, related, and medically necessary is hereby GRANTED.
This Court further finds that whether or not Plaintiff provided UNITED with written notice of the accident in this case as soon as practicable is a question of fact for the jury to determine; thus, summary judgment as to this issue is hereby DENIED.
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