12 Fla. L. Weekly Supp. 873a
Insurance — Personal injury protection — Claims — Medical bills — Timeliness — Where insurer filed affidavit stating bills were received over 75 days from date of service and letter of claims representative purporting to seek medical bills from claimant, claimant filed opposing affidavit of medical provider’s billing clerk that failed to identify what bills were submitted or whether they were bills for particular claimant among four claimants involved under insured’s policy, clerk’s affidavit does not state facts upon which clerk’s personal knowledge of transactions is based except that she reviewed mail receipts and records, and no copies of medical records were presented to satisfy hearsay exceptions, insurer’s motion for summary judgment is granted
TRANS-IMAGING DIAGNOSTIC MEDICAL CENTER, A/A/O ALGESIS VELENZUELA, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-004474 SP 26 (04). May 25, 2005. Bronwyn C. Miller, Judge. Counsel: Don Kerner. Alberto Valdes, U.S. Security Insurance Company, Inc., Miami.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before the Court upon Defendant’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 Defendant’s motion 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 May 17, 2003. Algesis Valenzuela, sustained injuries related to the accident, as did three other claimants. Graciani Yarlin Verenita was covered by a policy of insurance issued by Defendant, U.S. SECURITY INSURANCE CO. (hereinafter “U.S. SECURITY”). Algesis Valenzuela sought to recover under Verenita’s policy (as did three other claimants unrelated to this case).
2. Plaintiff submitted a notice of initiation of treatment to U.S. SECURITY. Said notice was received on June 9, 2003. Plaintiff then submitted a demand letter to U.S. SECURITY dated December 17, 2003. Said demand letter was received on December 23, 2003. The demand letter was postmarked December 18, 2003.
3. Plaintiff filed suit. Defendant now moves for summary judgment, contending that the bills were not submitted in a timely fashion following the submission of the initiation of treatment letter.
4. In support of its motion, Defendant filed the affidavit of Griel Muina stating that the bills were received over seventy-five days from the date of service and no other bills were submitted. Defendant further filed the demand letter, an assignment of benefits, a health insurance claim form (HCFA) unsigned by the provider and date stamped December 23, 2003, and a letter from Mavis Jackson, Claims Representative, purporting to seek medical bills from claimant.
5. In response, Plaintiff filed an affidavit from Marilyn Lorenzo, billing clerk for Plaintiff. Ms. Lorenzo states in her affidavit that she forwarded an initiation of treatment letter on June 5, 2003 to Defendant. Ms. Lorenzo further states that on or about July 25, 2003, “we forwarded the medical bills and medical records for services rendered to the Claimant’s purported insurer by certified mail return receipt.” However, there are no medical records or medical bills attached to Ms. Lorenzo’s affidavit or filed with the Court. Furthermore, Plaintiff attached an exhibit to Ms. Lorenzo’s affidavit that is entirely obscured by a certified mail receipt. Thus, it is impossible to determine whether or not the documentation pertains to the claimant at issue in this case or one of the other three claimants whom filed suit against the insurer in this case. Plaintiff was unable to produce neither unobscured documents nor the medical records/medical bills at issue for the Court at the time of the summary judgment hearing.
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). Defendant has met this burden through the submission of the affidavit of Ms. Muina. Accordingly, the burden shifts to Plaintiff 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.”).
Timely Submission of Medical Bills
Section 627.736(5)(c), Fla.Stat. (2001) requires a claimant to submit bills to the insurer within seventy-five days of the date of service following the submission of a notice of initiation of treatment. In the instant case, both parties concede that an initiation of treatment letter was submitted.
Defendant contends, through the affidavit of Ms. Muina, and the accompanying exhibit of Mavis Jackson, that Plaintiff’s bills were not submitted within seventy-five days.
In response, Plaintiff filed Ms. Lorenzo’s affidavit in an effort to create a genuine issue of material fact. However, Florida Rule of Civil Procedure 1.510(e) provides in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Fla.R.Civ.Pro.1.510(e). (emphasis added).
Ms. Lorenzo’s affidavit is vague in two regards. Ms. Lorenzo does not identify what bills, if any, were submitted to Defendant. Furthermore, Ms. Lorenzo does not state in her affidavit whether or not the bills allegedly submitted to the Defendant involved this claimant. This is of particular importance, as the parties agreed that there were four claimants involved under this insured’s policy. Instead, Ms. Lorenzo states: “we forwarded the medical bills and medical records for services rendered to the Claimant’s purported insurer by certified mail return-receipt requested.” Never does Ms. Lorenzo state that the bills relating to medical services rendered to the claimant were submitted.
Furthermore, Ms. Lorenzo did not state the facts upon which her personal knowledge of the transactions was based except for her review of the certified mail receipts and/or records. She does not indicate that she, personally, or another individual in her office mailed out the records. Instead, she uses the generic “we.” “Moreover, since no copies of the [medical] records were presented to satisfy the hearsay exceptions of sections 90.803(8) and (14), Fla.Stat. (2001), [her] affidavit [is] based upon hearsay and [is] incompetent to [oppose] summary judgment.” See, 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).
Defendant’s Motion for Summary Judgment is hereby GRANTED. Defendant shall go henceforth without day.
* * *
