13 Fla. L. Weekly Supp. 107b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where medical provider’s affidavit attests that services provided were reasonable, related and necessary as result of automobile accident, and insurer failed to produce competent evidence to rebut provider’s evidence, summary judgment is granted on issue of reasonableness, relatedness and necessity of treatment — Claimant residing with member of household who owns vehicle — Where it is undisputed that at time of accident passenger resided alone and did not own vehicle, evidence that passenger resided with parents until few weeks prior to accident does not create disputed issue of material fact as to where passenger resided on date of accident, and insurer must provide coverage for accident — Summary judgment — Premature — Outstanding interrogatories are no impediment to summary judgment where interrogatories are not related to matters at issue in summary judgment motion, and insurer has taken no action to compel compliance with rules of discovery relating to interrogatories
BRUCE M. GELCH, D.C., P.A.(a/a/o Karen Cecilia Bhoneswariedevi), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-18781 COCE 53. November 22, 2005. Robert W. Lee, Judge. Counsel: Gary D. Gelch, Fort Lauderdale, for Plaintiff. Rashad H. El-Amin, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This cause came before the Court on November 14, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file, heard argument, reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
Background.
1. On November 16, 2004, the Plaintiff filed its complaint for unpaid PIP benefits against Defendant.
2. On February 4, 2005, the Defendant filed its Answer and Affirmative Defenses, asserting the defense that claimant resided with a member of Defendant’s household that owned a vehicle, and as such there is no coverage for the accident.
3. Defendant filed its Notice of Filing Peer Review by Marvin J. Merrit, M.D. on March 14, 2005.
4. On September 22, 2005, Plaintiff filed its Notice for Jury Trial.
5. On September 26, 2005, the Court entered an Order Setting Pretrial Deadlines with referral to Arbitration. The Arbitration was set for November 22, 2005.
6. On October 14, 2005, Plaintiff filed its Motion for Summary Judgment and Memorandum of Law in Support.
7. On November 7, 2005, the Court set Plaintiff’s Motion for Summary Judgment for hearing on November 14, 2005.
8. On November 14, the summary judgment hearing was heard before the Court. The Defendant had served no affidavit in opposition to the Motion.
Conclusions of Law. Summary Judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Karen Cecilia Bhoneswariedevi was reasonable, medically necessary, and related to the accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists on this issue.
The undisputed evidence establishes as follows. The claimant was injured in a traffic accident which occurred on April 28, 2004 and in which she was a passenger. At the time of such accident, the Defendant had issued an insurance policy, which policy provided Personal Injury Protection insurance to Kirk Gordon, the named insured. The patient, Karen Bhoneswariedevi, was a passenger in a vehicle owned by Mr. Gordon.
From May 3, 2004 to August 30, 2004, Plaintiff provided medical services to Bhoneswariedevi which totaled $4,000.00. As consideration for the treatment rendered, Plaintiff accepted an assignment of benefits from Bhoneswariedevi. Plaintiff submitted its bills for services to the Defendant, but the bills were not paid. As a result, Plaintiff instituted this action to collect the assigned benefits together with statutory interest, attorney’s fees and costs.
Defendant filed an answer raising the following affirmative defenses: (1) that the claimant resided with a member of her household that owned a vehicle, which pursuant to Florida law must be insured and as such there is no coverage for this accident; and (2) Plaintiff’s bills were not reasonable, necessary, or related to the subject automobile accident.
Reasonable, Related, and Necessary Services. Section 627.736(4)(b), Florida Statutes, provides that PIP insurance benefits “shall be overdue if not paid within 30 days after the insurer is furnished with written notice of the fact of a loss and of the amount of same.” The same sub-section further provides that “any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.”
In Fortune Insurance Company v. Pacheco, 695 So.2d 394 (Fla. 3d DCA 1997) the principle of law was established that an insurance company has thirty days in which to verify the claim after receipt of an application for benefits and that the burden is clearly upon the insurer to authenticate the claim within the statutory time period. “To rule otherwise would render the recently enacted ‘no fault’ insurance statute a ‘no-pay’ plan.” Id. at 395.
Plaintiff’s affidavit of Dr. Bruce M. Gelch, D.C. attested to the fact that the services provided by the Plaintiff were reasonable, related and necessary as a result of the subject automobile accident. As such, the affidavit establishes Plaintiff’s prima facie case.
Unless the Defendant produces competent evidence to the expert affidavit of Dr. Gelch, summary judgment should be granted on the issue of reasonableness, relatedness and necessity of the medical services provided by the Plaintiff. Williamson v. Superior Insurance Company, 746 So.2d 483 (Fla. 2d DCA 1999). The Defendant failed to produce any such evidence.
The Circuit Court for the Eleventh Judicial Circuit sitting in its appellate capacity has recently issued opinions concerning the issuance of summary judgment in favor of medical providers against PIP carriers such as this Defendant. In the matter of United Automobile Ins. Co. v. Profession Medical Group, opinion dated August 3, 2004, the Eleventh Circuit Court held that summary judgment granted in favor of the medical provider was properly granted by the trial court where the medical provider presented an affidavit from the treating physician which provided that the services rendered to the insured were medically necessary and related to the injuries sustained in the subject automobile accident and when the Defendant, United, failed to present its own affidavit or other countervailing evidence in opposition to the affidavit of the treating physician.
In the matter of United Automobile Ins. Co. v. Neurology Associated Group Two, Inc., 11 Fla. L. Weekly Supp. 204b, the Eleventh Circuit again held that summary judgment was properly granted in favor of the medical provider when the provider submitted the affidavit of the treating physician to establish that the PIP benefits sought were reasonable, related to the accident and necessary for treatment. To counter the affidavit, the defendant submitted a letter from the adjuster which advised that an IME physician had advised that further treatment would not be reasonable, related or necessary. The Eleventh Circuit stated that such letter was not competent evidence under Fla. R. Civ. P. 1.510 as it was not an affidavit and constituted “rank hearsay as it is not the direct testimony of the Independent Medical Examiner.” Furthermore, the court stated that the “testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.” This Court has similarly ruled recently in Lauderdale Orthopaedic Surgeons v. United Automobile Ins. Co., Order Granting Plaintiff’s Motion for Final Summary Judgment, Case No. 04-10509 COCE 53 (Aug. 2, 2005) [12 Fla. L. Weekly Supp. 986a].
Residency Issue. In the May 16, 2005 deposition taken of the Defendant’s litigation adjuster, Luisa Gonzalez, Ms. Gonzalez confirmed that the only reasons why Plaintiff’s bills were not paid were due to the coverage issue and the relatedness of the injuries to the accident.
Ms. Gonzalez erroneously relies on the September 8, 2004 Examination under Oath taken of Bhoneswariedevi to determine that Defendant is not obligated to provide coverage to the claimant. In her deposition, Ms. Gonzalez stated that she relied on Page 4, Lines 15-18 and Page 5, Lines 17-22 of the EUO.
At the time of the accident, it is undisputed that Bhoneswariedevi resided at 701 N.W. 214th Street, Miami, Florida. At the time of the April 28, 2004 automobile accident, she did not own a car. At the time of the accident, no vehicles were registered to her home address. Finally, at the time of the April 28, 2004 automobile accident, she lived by herself. All these facts are established by Bhoneswariedevi’s deposition contained in the Court file. The fact that she resided with her parents until a few weeks prior to the accident does not create a disputed material fact as to where she resided on the date of her accident.
Accordingly, there is no bona fide issue as to whether Ms. Bhoneswariedevi resided with a member of her household that owned a vehicle since she specifically testified that on the date of the accident she (1) lived alone, and (2) did not own an automobile. As a result, Defendant’s Affirmative Defense of no coverage must be stricken and Defendant must provide coverage for this accident.
Failure to Complete Discovery. Finally, the Defendant argues that summary judgment is premature because of outstanding discovery. Specifically, the Defendant argues that it propounded interrogatories on the Plaintiff in February 2005 which have not been answered. While the Plaintiff acknowledges that it has not responded to the interrogatories, it points out that the subject matter of the interrogatories is not related to the matters at issue in the summary judgment motion. The Court agrees. Moreover, the Defendant has taken no action to attempt to seek compliance with the rules of discovery relating to these interrogatories. As a result, the outstanding interrogatories are no impediment to summary judgment in this case. See Estate of Herrera v. Berlo Industries, Inc., 840 So.2d 272, 273 (Fla. 3d DCA 2003); Periera v. Florida Power & Light Company, 680 So.2d 617, 618 (Fla. 4th DCA 1996) (dilatory discovery conduct not an impediment to summary judgment); Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988); Commercial Bank of Kendall v. Heiman, 322 So.2d 564, 564 (Fla. 3d DCA 1975) (failure to complete discovery bars summary judgment if failure is “through no fault” of non-moving party).
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. The Plaintiff shall within ten (10) days submit a proposed summary final judgment conforming to the terms of this Order.
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