12 Fla. L. Weekly Supp. 709d
Insurance — Personal injury protection — Coverage — Affirmative defenses — Amendment — No error in failing to consider insurer’s amended answer and affirmative defenses prior to entry of summary judgment where insurer never obtained leave of court to file amended pleading — Affirmative defense of failure of insured to countersign bill was properly stricken — Grant of partial summary judgment as to defense of lack or lateness of written notice of accident was proper where insurer failed to show any prejudice from receiving notice when it did — No error in entry of summary judgment as to defense of fraud where defense was withdrawn and than raised again in amended answer that insurer did not obtain leave to file — No error in entering summary judgment as to defenses of failure to provide insurer with valid assignment and reasonableness, relatedness and necessity of medical expenses where defenses had already either been stricken or ruled upon by trial court — Error to enter summary judgment where affirmative defense of failure to attend independent medical examinations that was raised in original answer and affirmative defenses but was never disproved or found by trial court to be legally insufficient prior to entry of summary judgment
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. PROFESSIONAL MEDICAL GROUP, a/a/o REBECCA AROCHA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-065 AP. L.T. Case No. 02-4276 SP 25. May 10, 2005. An appeal from the County Court, in and for Miami-Dade County, Teretha L. Thomas, J. Counsel: Paula B. Tarr, Office of the General Counsel, United Automobile Insurance Co., for Appellant. Maria Sampedro-Iglesia, for Appellee.
(Before LEONARD GLICK, CINDY S. LEDERMAN and MANUEL CRESPO, JJ.)
(CINDY S. LEDERMAN, J.) Professional Medical Group (hereinafter “Professional”), as the assignee of insured Rebecca Arocha, brought an action in the county court against United Automobile Insurance Co. (hereinafter “United”), seeking payment of medical bills for services it rendered to Arocha, United’s insured, following an automobile accident. The complaint also sought attorney’s fees pursuant to Fla. Stat. §627.428.
United filed an answer and alleged the following affirmative defenses: (1) that Arocha failed to countersign the bill, as required by §627.736(5)(a); (2) that the bills submitted were fraudulent; (3) that Arocha failed to attend two IMEs, thereby failing to fulfill a condition precedent to recovery; (4) that Professional failed to provide it with a valid assignment of benefits; and (5) that Professional violated §627.736 by failing to provide written notice of the accident to United. Additionally, United denied that the services rendered to Arocha were “reasonable, related or necessary” to the injuries she allegedly sustained. On November 21, 2003, the trial court granted Professional’s motion for partial summary judgment on the issue of “reasonableness, relatedness and necessity.”
Following entry of that order, United filed a motion to amend its answer and affirmative defenses, together with an amended answer and affirmative defenses. The record does not indicate that this motion was ever set down for hearing. The record also does not indicate that the trial court ever considered the amended answer and affirmative defenses. United again raised the same affirmative defenses, but also added two new affirmative defenses: (1) failure to comply with §§627.736(4)(b) and (5)(e), as there was no proof that Professional’s personnel were legally licensed to render treatment to Arocha; and (2) failure to comply with the requirement of notice pursuant to §627.736(11).
On January 9, 2004, the trial court entered final summary judgment for plaintiff, reserving jurisdiction on the issue of attorneys’ fees. On March 19, 2004, the trial court entered a final judgment awarding attorneys’ fees and costs to plaintiff under §627.428. United Auto appealed both the final judgment for plaintiff, and the attorneys’ fee and cost award, to the Appellate Division of the Eleventh Judicial Circuit.
United makes two arguments in support of its contention that the trial court erred. The first is that the trial court erred in granting summary judgment in plaintiff’s favor because genuine issues of material fact remained, as raised by the affirmative defenses. The second is that the trial court erred in denying United leave to file a second amended answer and affirmative defenses before the summary judgment hearing. For reasons discussed below, we hold that the trial court’s failure to consider United’s amended answer and affirmative defenses prior to the entry of summary judgment did not constitute error, as United never obtained leave of court to file this amended pleading. However, the trial court’s grant of summary judgment against United did constitute error, since United’s third affirmative defense was neither disproved by Professional nor found to be legally insufficient by the trial court.
Professional argues that all of United’s affirmative defenses were disposed of, no issues of fact remain and the trial court therefore correctly entered final judgment in Professional’s favor.
A review of the record indicates that the trial court granted Professional’s motion to strike the affirmative defense of lack of countersignature on November 1, 2002. While there is no district court of appeal opinion on the issue of countersignature, “circuit courts have uniformly interpreted the countersignature requirement in section 627.736(5)(a) as a permitted, not mandatory, mechanism that does not require the insured’s signature on the reimbursement form where the insured has assigned benefits to the medical provider.” Star Casualty v. U.S.A. Diagnostics, Inc., 855 So. 2d 251 (Fla. 4th DCA 2003). In Star, the Fourth District cited to the “plethora of cases uniformly interpreting the statute” as a basis for declining to exercise jurisdiction over the issue. Id. at 253.1 Accordingly, this affirmative defense was properly stricken.
Further review of the record reveals that the trial court granted partial summary judgment for plaintiff, on the affirmative defense of lack of written notice/late notice, on November 21, 2003. While there does not appear to be any case law from the district courts of Florida on this issue, the Court should note that there is persuasive, although not binding, authority for the principle that an insured is entitled to summary judgment on an insurance company’s affirmative defense of failure to provide written notice as soon as practicable to the insurer, “where there was absolutely no indication that the [insurer] sustained any prejudice in the record.” Micro-Diagnostics, Inc. and South Florida Institute of Medicine, a/a/o Luz Solarte v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 248a (Fla. Miami-Dade County Ct. Dec. 14. 2004). Likewise, in the case at bar, the record on appeal is devoid of any showing by United that it sustained any prejudice of any kind by receiving written notice when it did. Accordingly, it is suggested by this writer that the trial court’s grant of summary judgment on the affirmative defense of notice was proper.
Appellant also raised fraud as its second affirmative defense below. The record indicates that this affirmative defense was withdrawn on December 16, 2002.2 Although United raised this defense again in its amended answer and affirmative defense, filed January 7, 2004, the record does not indicate that its motion to amend was ever set down for hearing. Therefore, it is not clear that appellant ever received leave of court to file these affirmative defenses. Accordingly it appears that this defense was disposed of prior to the trial court’s entry of summary judgment. Therefore, the trial court did not err when it entered summary judgment as to this defense.
United next argues that the trial court erred in granting summary judgment and in not allowing United to amend its answer to add the affirmative defense of assignment of benefits. However, a review of the record on appeal indicates that the court granted Professional’s motion to strike this very defense on December 12, 2002. As the court had already stricken this affirmative defense, it was not error to grant summary judgment or to deny leave to amend.
Next, a review of the record reveals that the trial court granted Professional’s motion for partial summary judgment on the affirmative defense of reasonableness, relatedness and necessity on May 30, 2003. Consequently, this issue was ruled on prior to entry of summary judgment.
Nonetheless, it appears that United’s third affirmative defense was never disproved by Professional, nor was this defense found to be legally insufficient by the trial court, prior to the entry of summary judgment. This defense was failure to fulfill a condition precedent as a result of Arocha’s missing two scheduled IMEs. To obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of those defenses. National Ben Franklin Life Insurance Co. v. Cohen, 414 So. 2d 552, 553 (Fla. 3d DCA 1982). Moreover, a trial court’s failure to address the affirmative defenses before granting summary judgment is error. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784, 787 (Fla. 5th DCA 2003). As this defense was not addressed in any of the trial court’s orders prior to entry of summary judgment, nor in the motion for summary judgment, entry of summary judgment was error. Accordingly, we hereby reverse the summary judgment, vacate the award of attorney’s fees and remand this case to the trial court. (LEONARD E. GLICK and MANUEL CRESPO, JJ., concur.)
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1See Hialeah Med. Assocs., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 738b (Fla. 11th Cir.Ct. Sept. 17, 2002); Total Health Care of Fla., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 659a (Fla. 11th Cir.Ct.App.Div. Aug. 13, 2002), reh’g denied, 9 Fla. L. Weekly Supp. 737a (2002); S. Fla. Open MRI v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 397a (Fla. Miami-Dade Cty. Ct. Mar. 26, 2002); Health Care Assocs. of S. Fla. Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 397b (Fla. Dade Cty. Ct. Mar. 12, 2002); Premier Ctr. for Pers. Injuries v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 501a (Fla. Miami-Dade Cty. Ct. May 21, 2001); Dr. Steven Chase v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 458a (Fla. Dade Cty. Ct. Apr. 24, 2001); Dr. Steven Brown v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 567a (Fla. Broward Cty. Ct. June 26, 2002); Choice Med. Ctr., d/b/a Injury Treatment Ctr. of Boynton Beach, Inc. v. Seminole Casualty Ins. Co., 9 Fla. L. Weekly Supp. 196c (Fla. Palm Beach Cty. Ct. June 15, 2002); Dr. Jason T. Marucci d/b/a Spinal Health Rehab. Ctrs. v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 871b (Fla. Broward Cty. Ct. Oct. 25, 2002); Med. Specialists & Diagnostic Servs. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 708a (Fla. Orange Cty. Ct. Aug. 28, 2002); Stacey Mochnick v. State Farm Mut. Auto. Ins. Co., 7 Fla. L. Weekly Supp. 1a (Fla. 4th Cir.Ct. Aug. 31, 1999); AMC Rehab. & Pain Center, v. *253 United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 250b (Fla. Miami-Dade Cty. Ct. Oct. 9, 2001); Yolanda Rodriguez v. Ocean Harbor Cas. Ins. Co., 8 Fla. L. Weekly Supp. 500b (Fla. Miami-Dade Cty. Court Apr. 20, 2001).
2Record on Appeal at 25.
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