13 Fla. L. Weekly Supp. 182a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Affidavits presented by insurer in opposition to motion for summary judgment are insufficient where affidavits were served on day of hearing and conflict with insurer’s response to interrogatory stating that sole basis for denial of benefits was excessiveness of bills and insurer’s admissions that MRI at issue was reasonable, related and necessary — Independent medical examination and peer review reports are insufficient where reports state that information is true to best of reporting physician’s knowledge or that contents are true and accurate, but do not state that reports are based on personal knowledge — Further, reports are insufficient for having been filed after insurer had already withdrawn benefits — Final judgment entered in favor of medical provider
A-1 MOBILE MRI, INC., (Chaun LiMin), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13720 COCE (49). October 14, 2005. Kathleen D. Ireland, Judge. Counsel: Robert G. Nichols, Nichols Williams, P.A., Fort Lauderdale, for Plaintiff. Leandro Lissa, General Counsel, United Automobile Insurance Company, for Defendant.
ORDER GRANTING SUMMARY DISPOSITION AND FINAL JUDGMENT
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Summary Disposition, and the Court having reviewed the Motion, having heard argument from Counsel of Record during a full hearing, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion for Summary Disposition and Final Judgment is granted as follows:
ISSUE I. WHETHER THE ASSIGNMENT OF RIGHTS AND BENEFITS ATTACHED TO THE COMPLAINT AS PLAINTIFF’S EXHIBIT A IS LEGALLY VALID?
RULING: The Defendant has stipulated that no defense will be presented regarding the validity of the assignment of benefits.
ISSUE II. WHETHER THE FLORIDA PIP LAW REQUIRES HCFA FORMS TO BE COUNTERSIGNED BY AN INSURED WHEN THE MEDICAL PROVIDER HAS ACCEPTED AN ASSIGNMENT OF RIGHTS AND BENEFITS?
RULING: The Defendant has stipulated that no defense will be presented regarding whether the bill was countersigned.
ISSUE III. WHETHER THE AMOUNT OF PIP BENEFITS FOR THE MRI IN THIS CASE ARE PAYABLE ACCORDING TO A PRESET MRI FEE SCHEDULE?
RULING: The Defendant has stipulated that this is not an issue in this case.
ISSUE IV. WHETHER THE HCFA BILL CONSTITUTES VALID NOTICE OF A CLAIM?
RULING: The Defendant has stipulated that this is not an issue in this case.
ISSUE V. WHETHER CHAUN LIMIN WAS INVOLVED IN AN AUTOMOBILE ACCIDENT ON 5/7/02?
RULING: The Defendant has stipulated that this is not an issue in this case, and will not be raised as a defense.
ISSUE VI. WHETHER CHAUN LIMIN WAS COVERED BY A VALID POLICY OF INSURANCE ISSUED BY DEFENDANT AND IN EFFECT ON THE DATE OF LOSS?
RULING: The Defendant has stipulated that this is not an issue in this case.
ISSUE VIII. WHETHER PLAINTIFF TIMELY BILLED THE SERVICES AT ISSUE AND WHETHER DEFENDANT FAILED TO TIMELY PAY THE BILL AT ISSUE ?
RULING: The Defendant has stipulated that this is not an issue in this case.
ISSUE VII. WHETHER THE MRI PERFORMED ON CHAUN LIMIN BY PLAINTIFF ON 9/24/02, WAS REASONABLE, NECESSARY AND RELATED TO THE AUTOMOBILE ACCIDENT OF 5/7/02?
RULING: The motion is granted as to this issue based upon the following alternative grounds.
The Plaintiff filed this Motion for Summary Disposition on July 25, 2005, and obtained a hearing date on July 28, 2005. At that time, all record evidence to be presented by the Plaintiff in support thereof had already been filed with the Court. The Plaintiff’s presented the following evidence in satisfaction of its burden of proof for this issue:
(1) The Affidavit of Dr. Daniel Roero, the treating physician, which included the attachment of the MRI prescription at issue, as well as the MRI interpretation which indicated injury to the claimant’s spine;
(2) The Affidavit of the claimant, Chaun LiMin;
(3) The Defendant’s Examination Under Oath of the claimant, Chaun LiMin;
(4) The Affidavit of Angel Soto, the owner of A-1 Mobile MRI;
(5) The Plaintiff’s Interrogatories, and the Defendant’s Sworn Responses thereto;
(6) The Plaintiff’s Requests for Admissions;
(7) The Deposition of the Defendant’s Corporate Representative With The Most Knowledge of the Issues in this case.
In response, the Defendant presented an affidavit and IME Report by Dr. Jeffrey Senter, and an affidavit and Peer Review by Dr. Marvin Merritt. The affidavits were not filed and served upon the Plaintiff’s counsel until the day of this motion. The Court finds the documents presented by the Defendant to be insufficient for the following reasons. First, the sworn documents were not properly served within a reasonable amount of time as required by the Fla. Small Claims Rules, nor would they satisfy FRCP 1.510(c) which requires at least 2 business days for the filing of opposing papers.
In addition, the affidavits directly conflicted with previous sworn statements made by the Defendant, all of which were record evidence presented by the Plaintiff. Specifically, on 10/10/03, the Defendant’s sworn response to Plaintiff’s Interrogatory 23 stated that the sole basis for the denial of benefits in this case was that the medical bills submitted were excessive. In addition, on April 21, 2004, this Court denied the Defendant’s Motion for Relief from Plaintiff’s Request for Admissions, which included at least four specific admissions that the MRI at issue was reasonable, related and necessary (RFA’s 6,7,8 and 16). The Motion for Summary Disposition was filed on July 25, 2005. Nevertheless, on the day of the hearing for said motion, the Defendant served the conflicting affidavits from Drs. Merritt and Senter. See, DeCosmo v. Fisher, 683 So.2d 659, 660 (Fla. 5th DCA 1996) (“Our courts have consistently ruled that a party who opposes summary judgment will not be permitted to alter his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”)
In addition, the Court finds the IME and Peer Review reports insufficient based upon the following. First, in the Peer Review, Dr. Merritt states that the information contained in the report is true “to the best of my knowledge”, which Dr. Senter states in the IME report that the contents are merely “true and accurate.” Thus, the reports do not state that they are based upon “personal knowledge”, and therefore are not record evidence. In addition, the reports were filed after the Defendant had already withdrawn payment of PIP benefits.
Thus, based on the above-noted reasons, as well as reasons stated on the record, the Defendant has failed to satisfy its burden of proof with proper record evidence, and the motion is therefore granted as to this issue.
The Court having granted Final Summary Disposition in favor of the Plaintiff, it is, therefore,
ORDERED AND ADJUDGED that the Court hereby enters Final Judgment in the principle amount of NINE HUNDRED SEVENTY SIX DOLLARS AND ZERO CENTS [$976.00.], plus applicable statutory interest to date, in favor of the Plaintiff, A-1 Mobile MRI, Inc., for which let execution issue. This judgment shall bear interest at the rate of 7% per year from date of entry until satisfied. The Defendant shall take nothing. The Court awards reasonable attorneys fees and costs to Plaintiff’s Counsel, Nichols, Williams, P.A., and reserves jurisdiction as to the amount of same.
