12 Fla. L. Weekly Supp. 244b
Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Where insurer did not schedule EUO within 30 days of receipt of notice of loss, insurer breached insurance policy by failing to pay PIP claim within 30 days after notice or establish that it had reasonable proof it was not liable for payment; and insurer is barred from using insured’s failure to attend EUO as defense or reason for nonpayment — Independent medical examination — Cutoff of benefits based on IME report by chiropractor only affects chiropractic benefits and is inapplicable to bills from orthopedic medical provider — Demand letter — Requirement to send pre-suit demand letter was obviated by insurer’s denial of benefits based on alleged failure to attend EUO — Summary judgment granted in favor of providers where insurer failed to substantially impeach medical expert testimony of treating physicians or present countervailing evidence from licensed physician to dispute reasonableness, relatedness, and necessity of medical services and expenses
QUINTANA CHIROPRACTIC CENTER, INC., A-1 MOBILE MRI, INC., AND ORTHOPEDIC HEALTH CENTER INC., assignee of Luis Perez, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-152 CC25 (3). December 3, 2004. Mercedes A. Bach, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Gal Sinclair.
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
[Editor’s note: Numbered paragraphs are as they appear on the court’s order.]
THIS CAUSE having come to be heard, after due notice to the parties, on Plaintiffs’, QUINTANA CHIROPRACTIC CENTER, INC., A-1 MOBILE MRI, INC., AND ORTHOPEDIC HEALTH CENTER INC., assignees of Luis Perez’s, Motion for Summary Judgment, the Court having heard argument of counsel on September 28, 2004, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiffs’ Motion for Final Summary Judgment is GRANTED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, there does not appear to exist any genuine issues of material facts, thereby entitling the Plaintiffs to Final Summary Judgment as a matter of law.FINDINGS OF UNDISPUTED FACT
2. The Plaintiffs sued the Defendant on January 8, 2003, alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on January 16, 2002.
3. The Plaintiffs sued the Defendant for medical expenses in the following amounts:
A. QUINTANA CHIROPRACTIC CENTER in the amount of $7,012.00, for services provided February 5th, 2002 through May 6th, 2002.
B. A-1 MOBILE MRI, INC. in the amount of $1,500.00, for services provided March 20, 2002.
C. ORTHOPEDIC HEALTH CENTER, INC. in the amount of $775.00, for services provided April 22, 2002 through May 13, 2002.
4. On or about March 22, 2004, the Defendant filed its Amended Answer and Affirmative Defenses.
5. On April 26, 2004, the Court struck the Defendant’s Amended Affirmative defenses in paragraphs: 2, 4, 5, 7, and 13; the Court ordered more definite statements for paragraphs 3, 6, 12, and 14; the Court also struck the Affirmative Defense in paragraph 15 and allowed the Defendant 15 days to amend. To date, the Defendant failed to file more definite statements for the Amended Affirmative defenses in paragraphs 3, 6, 12, and 14, or 15.
5. As the Defendant’s seventh affirmative defense (paragraph 8), it alleges the Plaintiff’s claim is barred and the Plaintiff is not entitled for payments from the Defendant as the claimant materially breached the subject insurance contract by failing to appear to an examination under oath and the Defendant was prejudiced due to the claimant’s breach.
6. The Plaintiffs filed the deposition transcript of the Defendant’s adjuster, Octavio Cruz. He is the person with the most knowledge of this claim at UNITED AUTO.
7. Mr. Cruz testified the Defendant first received bills on March 8, 2002, from the Plaintiff, QUINTANA.
8. Mr. Cruz also testified the Defendant failed to send an EUO request to the claimant until April 11, 2002, scheduling an EUO for April 29 or May 7, 2002. The Claimant failed to attend the examinations. (Deposition of Octavio Cruz at p. 7).
9. [Editor’s Note: Number 9 omitted by judge.]
10. Mr. Cruz stated several times the EUO was not scheduled within thirty days of the receipt of the bills. (Deposition of Octavio Cruz at pgs. 20, 24, and 25).
11. The Defendant breached the terms of its insurance policy by failing to pay the subject medical expenses within thirty (30) days of receipt of same or establish it had reasonable proof that it (Defendant-insurer) was not responsible for the payment pursuant to Fla. Stat. 627.736(4)(b).
12. Since the Defendant breached the subject policy of insurance and failed to timely schedule an EUO within thirty (30) days of receipt of notice of the loss, it is barred from using the claimant’s failure to attend the EUO as a reason for non-payment or defense in this lawsuit. Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999); and, United Automobile Ins. Co. v. Millenium Diagnostic & Imaging Center, a/a/o Catalina Candelario, 10 Fla. L. Weekly Supp. 971c (Fla. 11th Jud. Cir. 2003).
13. The thirty (30) day investigation period for the Defendant-insurer does not re-start or reset upon the receipt of additional bills from the Plaintiff-provider.
14. As the Defendant’s eighth amended affirmative defense (paragraph 9), it alleges the Plaintiff’s claim is barred and the Plaintiff is not entitled to payments from the Defendant as the claimant materially breached a condition precedent of the subject insurance policy by failing to appear for an examination under oath.
15. This affirmative defense addresses the EUO no-show defense which the Court previously determined was insufficient to deny payment.
16. As the Defendant’s ninth amended affirmative defense (paragraph 10), it alleges the Plaintiff’s claim is subject to the deductible provision set forth in the subject insurance policy.
17. The Plaintiffs acknowledge a deductible is applicable and the subject medical expense will be reduced by $2,000.00 accordingly.
18. As the Defendant’s tenth amended affirmative defense (paragraph 11), it alleges the Defendant properly withdrew payment to Plaintiff pursuant to a written report of a qualified physician as defined by Fla. Stat. 627.736(7), and as a result thereof, owes no further payment of benefits to or on behalf of claimant.
19. This affirmative defense is insufficient to deny payment for the subject medical expenses.
20. Mr. Cruz testified the Defendant received an IME report on April 30, 2002, by Don Morris, DC. Based on the IME report, dated April 11, 2002, the Defendant suspended benefits as of May 11, 2002.
a. Specifically, see deposition transcript of Octavio Cruz p. 37, l. 7-11:
Q: When’s your IME cutoff?
A: May 11, 2002.
Q: So no DC bills were received after the cutoff date?
A: No.
21. Given that benefits were suspended as of May 11, 2002, and based upon Mr. Cruz’s testimony, the only two bills arguably effected by the IME cutoff were received from Plaintiff, ORTHOPEDIC HEALTH. However, the services rendered by ORTHOPEDIC HEALTH were performed by a medical doctor (“MD”). The Defendant’s IME cutoff only effects “DC” or chiropractic benefits. Therefore, the Defendant’s IME cutoff is inapplicable.
22. As the Defendant’s eleventh amended affirmative defense (paragraph 12), it alleges the health care provider whose charges are the subject matter of the Complaint failed to comply with requirements of Fla.Stat. 627.736 by failing to submit statement for services rendered within the statutory time permitted and, pursuant to the above referenced statutory provision, the injured party is not liable for, and this Defendant is not required to pay, said charges.
23. The Defendant failed to rebut the evidence submitted by the Plaintiff or provide any evidence/documentation to support its assertion that the bills were submitted untimely. The Defendant’s adjuster never even testified any of the bills were not paid due to late billing.
24. As the Defendant’s thirteenth amended affirmative defense (paragraph 14), it alleges the Plaintiff failed to provide the Defendant with a proper demand letter that complies with the statutory requirements.
25. The Defendant fails to specify which Plaintiff allegedly failed to comply with Fla.Stat. 627.736(11). However, the requirement to send a demand letter was obviated as the Defendant denied benefits based upon the alleged EUO no show. (See deposition of Octavio Cruz p. 9-10).
26. In the instant case, the Defendant suspended benefits on May 29, 2002, due to the claimant’s alleged failure to attend an examination under oath. The claimant was still receiving treatment from the Plaintiffs at this time. The Defendant sent a denial letter on May 29, 2002. The Plaintiffs’ obligation to provide a demand letter pursuant to Fla. Stat. 627.736(11)(a) dissipated when the Defendant-insurer denied coverage for the insured’s claim.
27. As the Defendant’s fifteenth amended affirmative defense (paragraph 16), it alleges the Plaintiff, QUINTANA, is not entitled for payments for personal injury protection benefits from the Defendant as the Plaintiff, QUINTANA, violated Fla.Stat. 817.505. The Plaintiff, QUINTANA, did not provide the transportation. The Plaintiff did not provide the vehicle for the transportation. The Plaintiff charged the Defendant more than the third party charges for the transportation.
28. The Plaintiff, QUINTANA, hereby withdraws payment for transportation services. Therefore, this affirmative defense is moot.
29. The Plaintiff filed the deposition of Mr. Cruz, the Defendant’s adjuster.
30. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on March 8, 2002, for dates of service February 5, 2002, through February 27, 2002, in the amount of $2,161.00 (Line 1 PIP payout log). These bills were not paid because they would be applied to the deductible, the claimant stated during his IME he did not receive massage therapy, and the EUO no-shows.
31. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on March 19, 2002, for dates of service March 5, 2002, through March 13, 2002, in the amount of $846.00 (Line 2 PIP payout log). These bills were not paid because they would be applied to the deductible, the claimant stated during his IME he did not receive massage therapy, and the EUO no-shows.
32. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on April 1, 2002, for dates of service March 14, 2002, through March 20, 2002, in the amount of $640.00 (Line 3 PIP Payout log). These bills were not paid because the claimant stated during his IME he did not receive massage therapy and the EUO no-shows.
33. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, A-1 MOBILE MRI, on April 2, 2002, for date of service February 7, 2002, in the amount of $950.00 (Line 4 of the PIP Payout log). Mr. Cruz noted the Defendant received a notice of initiation of treatment letter from A-1 MOBILE MRI on February 22, 2002. These bills were not paid because of the EUO no-shows.
34. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on April 2, 2002, for dates of service March 26, 2002, through March 28, 2002, in the amount of $791.00 (Line 5 PIP Payout log). These bills were not paid because of the EUO no-shows and because the provider began to charge higher amounts for the services rendered.
35. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, A-1 MOBILE MRI, on April 5, 2002, for dates of service March 25, 2002, in the amount of $1,500.00 (Line 7 PIP Payout log). This bill was not paid because the charge was above usual and customary and the EUO no-shows.
36. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on April 24, 2002, for dates of service April 2, 2002, through April 17, 2002, in the amount of $1,342.00 (Line 9 PIP Payout log). These bills were not paid because of the statements at the IME, the EUO no-shows and because the provider began to charge higher amounts for the services rendered.
37. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, ORTHOPEDIC HEALTH, on May 3, 2002, for dates of service April 22, 2002, in the amount of $500.00 (Line 10 PIP Payout log). This bill was not paid because of the EUO no-shows and a lack of countersignature.
38. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, QUINTANA, on May 9, 2002, for dates of service April 18, 2002, through May 6, 2002, in the amount of $1,026.00 (Line 11 PIP Payout log). These bills were not paid because of the statements at the IME, the EUO no-shows and because the provider began to charge higher amounts for the services rendered.
39. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, ORTHOPEDIC HEALTH, on May 28, 2002, for date of service May 13, 2002, in the amount of $275.00 (Line 12 PIP Payout log). This bill was not paid because of the EUO no-shows and a lack of countersignature.
40. Mr. Cruz testified the Defendant received medical bills from the Plaintiff, ORTHOPEDIC HEALTH, on January 10, 2003, for date of service December 23, 2002, in the amount of $400.00 (Line 12 PIP Payout log). This bill was not paid because of the EUO no-shows and a lack of countersignature.
41. The Plaintiff filed the deposition transcript of the insured/claimant, Luis Perez, who testified he was in the subject motor vehicle accident on January 16, 2002, described the accident, that he was driving his insured vehicle at the time of the accident, that his vehicle was insured by United Automobile, testified he was injured as a result of the accident, described his injuries, testified he sought medical care an attention for his injuries at QUINTANA, received therapy at QUINTANA, and described the therapy. (See deposition transcript of Luis Perez taken on September 12, 2003).
42. The Plaintiff’s medical expenses are reasonable, related and necessary. The Plaintiffs filed affidavits of the treating physicians, Glenn Quintana, DC, and Dennis Zaslow, DO, and the persons with the most knowledge of the billing and records from the Plaintiffs QUINTANA and ORTHOPEDIC HEALTH CENTER, Maria Lopez and Julie Coronado, which establish that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and all of the treatment was related to the subject accident, reasonable and necessary.
43. In opposition to Plaintiffs’ Motion for Summary Judgment the Defendant filed the deposition transcript of Luis Perez. The Defendant additionally argued that the Plaintiff, QUINTANA, stated in his deposition that some of the charges were wrong because of a billing error. The Defendant failed to file the deposition transcript, so the Court did not allow any argument on that issue. However, the Plaintiff’s, QUINTANA’s, counsel stated on the record that if there were any billing errors discovered during the course of that deposition, the Plaintiff would not seek payment for any excessive charges which will be reflected in the Final Judgment accordingly.
44. The Defendant failed to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician to dispute the reasonable, related and necessary medical services and expenses.
ISSUES OF LAW
45. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
46. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
47. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes § 627.736(7).
48. The Defendant failed to establish it had reasonable proof that it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter as the treating physicians stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding medical expenses remain due and owing plus interest from 30 days after receipt of each bill up to the present.
49. The appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) further supports the Plaintiff’s Motion for Summary Judgment.
50. Also, United Automobile Insurance Co. v. Mendoza, 11Fla. L. Weekly. Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position.
51. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992).
52. The Defendant breached the terms of its insurance policy by failing to pay the subject medical within thirty (30) days of receipt of same or establish it had reasonable proof that it (Defendant-insurer) is not responsible for the payment pursuant to Fla. Stat. 627.736(4)(b).
53. Since the Defendant breached the subject policy of insurance and failed to timely schedule an EUO within thirty (30) days of receipt of notice of the loss and is therefore barred from using the claimant’s failure to attend the EUO as a reason for non-payment. Amador v. United Automobile Ins. Co., 748 So.2d 307 (Fla. 3rd DCA 1999); and, United Automobile Ins. Co. v. Millenium Diagnostic & Imaging Center, a/a/o Catalina Candelario,10Fla. L. Weekly Supp. 971c (Fla. 11th Jud. Cir. 2003).
54. The thirty (30) day investigation period for the Defendant-insurer does not re-start or reset upon the receipt of additional bills from the Plaintiff-provider.
55. The Defendant alleges the Plaintiff failed to provide the Defendant with a proper demand letter that complies with the statutory requirements.
56. The Defendant fails to specify which Plaintiff allegedly failed to comply with Fla. Stat. 627.736(11). However, the requirement to send a demand letter was obviated as the Defendant denied benefits based upon the alleged EUO no show. (See deposition of Octavio Cruz p. 9-10).
57. Fla.Stat. 627.736(11)(a) (2002) states in pertinent part:
As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation;. . .such notice is not required for an overdue claim that the insurer has denied or reduced…
(Emphasis added).
58. As discussed above, the Defendant suspended benefits on May 29, 2002, due to the claimant’s alleged failure to attend an examination under oath. The claimant was still receiving treatment from the Plaintiffs at this time. The Defendant sent a denial letter on May 29, 2002. The Plaintiffs’ obligation to provide a demand letter pursuant to Fla. Stat. 627.736(11)(a) dissipated when the Defendant-insurer denied coverage for the insured’s claim.
59. The Defendant has no basis under its contract or §627.736(4) or (7) to establish it is not responsible for the medical expenses in the following amounts:
A. QUINTANA CHIROPRACTIC CENTER in the amount of $5,888.00, for services provided February 5th, 2002 through May 6th, 2002 (these are the reduced charges which do not include transportation or the excessive charges due to billing errors).
B. A-1 MOBILE MRI, INC. in the amount of $1,500.00, for services provided March 20, 2002 (reduced to Medicare Part B schedule in the amount of $825.96).
C. ORTHOPEDIC HEALTH CENTER, INC. in the amount of $775.00, for services provided April 22, 2002 through May 13, 2002.
60. The Plaintiffs complied with all conditions precedent prior to instituting this lawsuit, and are entitled to Judgment as a Matter of Law regarding payment of the subject bills at 80% minus the deductible plus interest from 30 days after receipt of each bill up to and including the present.
61. The Plaintiffs are entitled to Final Summary Judgment in the following amounts (plus statutory interest that UNITED AUTOMOBILE has not paid as of this date) for which let execution issue:
A. QUINTANA CHIROPRACTIC CENTER in the amount of $2,710.00 (this figure includes the deduction of the $2,000.00 deductible);
B. A-1 MOBILE MRI, INC. in the amount of $825.96; and
C. ORTHOPEDIC HEALTH CENTER, INC. in the amount of $620.00.
62. This Court finds the Plaintiffs are entitled to attorney’s fees and costs pursuant to § § 627.736 and 627.428 as the prevailing party, and reserves jurisdiction to enter a Final Judgment on attorney’s fees and costs accordingly.
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FINAL JUDGMENT
THIS CAUSE having come to be heard after due notice to the parties, on Plaintiffs’, QUINTANA CHIROPRACTIC CENTER, INC., A-1 MOBILE MRI, INC., AND ORTHOPEDIC HEALTH CENTER INC., assignee of Luis Perez’s, Motion for Summary Judgment, the Court having heard argument of counsel on September 28, 2004, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
l . That the Plaintiff, QUINTANA CHIROPRACTIC CENTER, INC., assignee of Luis Perez, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of TWO THOUSAND SEVEN HUNDRED TEN DOLLARS AND NO CENTS ($2,710.00) plus interest in the amount of THREE HUNDRED NINETY SIX DOLLARS AND TWENTY EIGHT CENTS ($396.28), for a total amount of THREE THOUSAND ONE HUNDRED SIX DOLLARS AND TWENTY EIGHT CENTS ($3,106.28), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to QUINTANA CHIROPRACTIC CENTER, INC. and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
2. That the Plaintiff, A-1 MOBILE MRI, INC., assignee of Luis Perez, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of EIGHT HUNDRED TWENTY FIVE DOLLARS AND NINETY SIX CENTS ($825.96) plus interest in the amount of ONE HUNDRED THIRTY TWO DOLLARS AND SEVENTY ONE CENTS ($132.71), for a total amount of ONE THOUSAND THREE HUNDRED SIXTY FIVE DOLLARS AND NINETY CENTS ($958.67), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to A-1 MOBILE MRI, INC. and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
3. That the Plaintiff, ORTHOPEDIC HEALTH CENTER INC., assignee of Luis Perez, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of SIX HUNDRED TWENTY DOLLARS AND NO CENTS ($620.00) plus interest in the amount of NINETY TWO DOLLARS AND FORTY FIVE CENTS ($92.45), for a total amount of SEVEN HUNDRED TWELVE DOLLARS AND FORTY FIVE CENTS ($712.45), for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The draft shall be made payable to ORTHOPEDIC HEALTH CENTER INC. and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134.
4. This Court reserves jurisdiction to award attorney’s fees and costs in favor of the Plaintiff, and enter a Final Judgment for Attorney’s Fees and Costs accordingly.
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY, Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Defendant’s Motion for Summary Judgment regarding its EUO no-show defense is hereby DENIED.
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ORDER ON DEFENDANT’S MOTION FOR REHEARING
THIS CAUSE having come to be heard on Defendant’s, UNITED AUTOMOBILE INSURANCE COMPANY, Motion for Rehearing, the Court having heard argument of counsel on 12/3/04 and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. Granted. Plaintiff’s MSJ is hereby granted after hearing on Defendant’s Motion for Rehearing.
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