12 Fla. L. Weekly Supp. 393a
Insurance — Personal injury protection — Coverage — Denial — Reasonable, related and necessary treatment — Where medical provider has presented competent that treatment provided to insured was reasonable, related and medically necessary, and insurer has presented competent sworn evidence of independent medical examination and peer review report to raise issue of material fact as to whether treatment that occurred after date of withdrawal of benefits was reasonable, related and necessary but has not presented any competent sworn evidence for treatment prior to that date, provider is entitled to partial summary judgment on issue of liability for treatment prior to withdrawal date
TWO AND TWO, LLC, a/s/o Jennifer Beaulieu, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-3453 COSO 62. January 24, 2005. Robert W. Lee, Judge. Counsel: Rina Kaplan, Hollywood, for Plaintiff. Yvette E. Blackwell, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause came before the Court on December 28, 2004 for hearing of the Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the Motion and entire Court file, received evidence, heard argument, and been sufficiently advised in the premises, finds as follows:
Background. This case involves a claim of unpaid PIP benefits. As one of its defenses to the Complaint, the insurer asserts that it has properly denied the claim because the medical expenses were not “reasonable and/or medically necessary based on the opinion of Dr. Danny Scott Feder.” Because the material facts are not disputed as to whether treatment prior to February 5, 2004 was reasonable, related, or medically necessary, the Plaintiff is entitled to partial summary judgment on this point. However, because the facts are disputed as to the amount of the charges as well as the reasonableness or medical necessity of treatment after February 5, 2004, the Plaintiff is not entitled to partial summary judgment on these points.
The following facts are undisputed1:
1. The patient, Jennifer Beaulieu, received medical care and/or treatment from the Plaintiff, Two and Two, LLC d/b/a Complete Rehab & Medical Center of Hollywood for injuries sustained in a motor vehicle collision which occurred on October 17, 2003. (Affidavit of Marie Muirhead; Affidavit of Jennifer Beaulieu)
2. The Defendant insurer issued a policy of automobile insurance to Beaulieu which provided personal injury protection benefits to her as required by State law. (Defendant’s Answer ¶3)
3. The insurance policy was in full force and effect on the date of the accident and provided PIP coverage to Beaulieu for bodily injuries sustained in the accident. (Defendant’s Response to Request for Admissions ¶¶2-4; Affidavit of Jennifer Beaulieu)
4. Beaulieu properly executed an Assignment of Benefits assigning her rights to Plaintiff to any and all benefits and overdue interest covered under any policy of insurance, insurance agreement, or any other collateral source defined by Florida law. (Affidavit of Marie Muirhead)
5. On November 1, 2003 and thereafter, the Plaintiff submitted charges to the insurer for payment under the PIP policy. (Defendant’s Response to Request for Admissions ¶26; Affidavit of Dr. Marvin J. Merritt and attached Peer Review)
6. The insurer received a copy of Beaulieu’s medical authorization prior to the filing of this action. (Defendant’s Response to Request for Admissions ¶27)
7. On February 5, 2004, the insurer had Dr. Feder perform an independent medical examination upon Beaulieu in which he determined that further chiropractic treatment would not be reasonable, related or medically necessary. (Defendant’s Answer to Interrogatories ¶13)
8. On May 18, 2004, the provider filed this action for unpaid PIP benefits. (Complaint p. 1)
9. On November 24, 2004, Dr. Marvin J. Merritt, on behalf of the insurer, conducted a peer review of the medical records of the treatment rendered to Beaulieu by the provider. (Affidavit of Dr. Merritt)
10. Dr. Merritt concurred with Dr. Feder’s findings that payment for chiropractic treatment beyond February 5, 2004 would not be reasonable, related or medically necessary. (Affidavit of Dr. Merritt)
11. Chiropractic treatment rendered prior to February 5, 2004 was reasonable, related and medically necessary. (Affidavit of Dr. Craig Bauer; Affidavit of Jennifer Beaulieu)
12. The insurer has not paid any of the medical charges. (Defendant’s Answer to Interrogatories ¶16).
The following, however, is in dispute: The Court has reviewed the sworn evidence provided by the Plaintiff, as well as the Defendant’s Answer, Responses to Interrogatories, and Responses to Request for Admissions. The Court can find nothing which establishes without dispute the amount of the unpaid charges and when, if at all, the insurer withdrew benefits. Additionally, there continues to be a dispute for any treatment rendered after February 5, 2004.
Conclusions of Law. Under PIP law, an insurer cannot withdraw or deny further medical payments without first obtaining the physician’s report required by Fla. Stat. §627.736(7)(a). See United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1998). See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente, J., concurring); Optima Health & Rehab v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty Ct. 2003). In the instant case, the insurer did obtain a physician’s report on February 5, 2004 to withdraw further benefits. The record evidence establishes, however, that the Defendant received requests for payment for treatment prior to that date which it has failed to pay.
Moreover, even if there were a disputed material fact as to when benefits were withdrawn, there is no disputed material fact as to whether the treatment prior to February 5, 2004 was reasonable, related and medically necessary. The Plaintiff has presented competent, sworn evidence that the medical treatment provided to the insured was reasonable, related and medically necessary. The Defendant has presented competent, sworn evidence to raise an issue of material fact for treatment that occurred subsequent to February 5, 2004 only; it has presented no competent, sworn evidence for treatment prior to that date. To the contrary, the affidavits provided by the Defendant’s own doctors support the Plaintiff’s claim that treatment provided prior to February 5, 2004 was reasonable, related and medically necessary.
As a result, the Plaintiff is entitled to a partial summary judgment on the issue of liability for treatment prior to February 5, 2004. There continues to be a disputed issue of material fact as to the amount of all charges, as well as liability for treatment after February 5, 2004. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED in part as set forth in this Order.
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1Pursuant to Rule 1.510(d), Fla. R. Civ. P., the Court finds that these material facts have been established without substantial controversy, and at any further hearing or trial in this case, these facts shall be deemed established without the necessity of any further evidence or argument.
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