12 Fla. L. Weekly Supp. 967a
Insurance — Personal injury protection — Coverage — Affirmative defenses — Notice of loss — Medical provider has overcome any prejudice from 37 day delay between accident and notice to insurer where insurer was fully able to investigate claim through independent medical examination, examination under oath, and peer review — Disclosure and acknowledgment form — Summary judgment is granted in favor of medical provider on affirmative defense of failure to provide disclosure and acknowledgment form where copy of form that substantially complied with statutory requirement was filed with affidavit of provider’s records custodian — Unreasonable, unrelated or unnecessary treatment — Summary judgment is granted in favor of provider as to affirmative defense that treatment was unreasonable, unrelated or unnecessary where provider filed affidavit of treating physician attesting that treatment was related and necessary and affidavit of records custodian attesting that charges were reasonable, and insurer filed peer review that did not establish that insurer had reasonable proof pursuant to statute — Where IME report raises disputed issues of material fact as to reasonableness, relatedness or necessity of medical treatment rendered after IME date, summary judgment is granted in favor of provider as to dates of service prior to IME cutoff only
TOTAL CARE HEALTH CENTER, INC., a/a/o Eugenio M. Mendez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-158 SP 25(2). July 12, 2005. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead. Noel Espinosa.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff, TOTAL CARE HEALTH CENTER, INC., a/a/o Eugenio M. Mendez’s, Motion for Summary Judgment, on June 24th, 2005, after due notice to all parties, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is GRANTED in part. After reviewing the court file, including pleadings and filed affidavits, and hearing argument of counsel, there appears to exist a genuine issues of material fact only to medical expenses subsequent to June 9, 2004 (discussed infra). Therefore, the Plaintiff is entitled to Summary Judgment as a matter of law on all other issues and medical expenses up to June 9, 2004.
2. The Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to the Defendant’s first affirmative defense of late notice. The Plaintiff overcomes any alleged prejudice to the Defendant from the approximately thirty-seven (37) day delay between the date of loss (March 28, 2004) and the date the Defendant received notice of the subject accident (May 5, 2004) as the Defendant was able to fully investigate the claim inasmuch as it conducted an independent medical examination, an examination under oath, and a “peer review”. Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla. 1969); Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla. 1985); West Gables Open MRI a/a/o Nelly Ladino v. United Automobile Insurance Co., Case No. 01-22799 SP 23 (02) (Fla. 11th Jud. Cir., June 19, 2005).
3. The Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to the Defendant’s second affirmative defense which alleged the Plaintiff failed to submit a disclosure and acknowledgment form in accordance with Fla.Stat. 627.736(5)(e). The Plaintiff filed an affidavit of Mildred Gonzalez, the records custodian for the Plaintiff. Attached as “Exhibit B” to Ms. Gonzalez’s affidavit is a true and correct copy of the subject disclosure and acknowledgment form. This form substantially complied with the requirements found in Fla.Stat. 627.736(5)(e).
4. The Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to the Defendant’s third affirmative defense which alleged the subject medical bills were not reasonable, related and necessary for dates of service May 3, 2004, through June 7, 2004, in the amount of $2,775.00 (discussed infra). The Plaintiff filed the affidavit of Amaro Exposito, DC, who testified all of the subject treatment was related and necessary. The affidavit of Ms. Gonzalez establishes the subject charges were reasonable. The Court refuses to consider the peer review of Marvin Merrit, DC, performed on April 4, 2005, as it did not establish it had reasonable proof pursuant to Fla.Stat. 627.736(4). United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998).
5. As such, the Plaintiff met its burden under Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) and the Defendant failed to either severely impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician to dispute the above stated reasonable, related and necessary medical services and expenses.
7. The Plaintiff’s Motion for Summary Judgment is hereby GRANTED in part on the Defendant’s fourth affirmative defense of IME cutoff. In opposition to the subject Motion, the Defendant filed the IME report of Dennis Kogut, DC, performed on June 9, 2004. Dr. Kogut determined from chiropractic viewpoint, no further treatment would be reasonable, related or necessary as it related to the subject accident. The Court finds there is a genuine issue of material fact as to medical services rendered after June 9, 2004.
8. The only remaining issue is $770.00 in medical expenses for dates of service June 9, 2004, and June 11, 2004.
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FINAL JUDGMENT
THIS CAUSE having come to be heard on Plaintiff, TOTAL CARE HEALTH CENTER, INC., a/a/o Eugenio M. Mendez’s, Motion for Summary Judgment, the Court having heard argument of counsel on June 24th, 2005 after the parties receiving notice, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff, TOTAL CARE HEALTH CENTER, INC., a/a/o Eugenio M. Mendez, hereby recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, the principal sum of TWO HUNDRED TWENTY DOLLARS AND NO CENTS ($220.00) ($3,545.00 – $770.00 x 80% – $2,000.00 = $220.00) plus interest in the amount of SIXTEEN DOLLARS AND TWENTY FOUR CENTS ($16.24), for a total amount of TWO HUNDRED THIRTY SIX DOLLARS AND TWENTY FOUR CENTS ($236.24), 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 TOTAL CARE HEALTH CENTER, INC., and delivered to Kevin W. Whitehead, Esq. at 255 University Drive, Coral Gables, FL 33134 or current business address at the time of payment.
2. 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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