13 Fla. L. Weekly Supp. 900a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit — Where witness whose deposition testimony insurer offered to dispute amount of charges relied on Physician Fee and Coding Guide for year prior to year of treatment, testimony was unreliable — Further, where insurer failed to attach to testimony portions of guide on which witness relied, testimony could not be used — Summary judgment granted in favor of medical provider
C & S MEDICAL CLINIC a/a/o Hector Prieto, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-2010 CC 25. April 13, 2006. Lawrence D. King, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGEMENT
Plaintiff’s Motion for Summary Final Judgment as to all of the issues in this case was heard before this court on March 7, 2006. Counsel for Defendant being duly notice was present as well asCounsel for Plaintiff. This court finds the following undisputed material record facts were presented before this court:
1) On September 28, 2002, Hector Prieto was involved in a motor vehicle accident in which he sustained bodily injuries. At the time of the accident, Hector Prieto wasthe insured of Defendant that provided PIP coverage for Hector Prieto’s medical bills. On or about October 2, 2002, Hector Prieto began treatment with Plaintiff for his
injuries. Hector Prieto treated with Plaintiff until December 6, 2002. On October 2, 2002 Hector Prieto executed an assignment of benefits in favor of Plaintiff assigning his rights for the collection andprosecution for the payment ofany and all PIP benefits owed to him under his insurance policy with Defendant;
2) Plaintiff timely placed Defendant on notice of all of its claims for the payment of PIP benefits for the treatment of Hector Prieto. The total amount of medical bills that plaintiff submitted to Defendant for the treatment of Hector Prieto was $7,215.00;
3) Defendant failed to pay for any of Plaintiff’s medical bills. As a result thereof, Plaintiff was required to institute a lawsuit against Defendant for the payment of PIP benefits owed under Hector Prieto’s insurance policy for medical bills expended in the treatment of Hector Prieto;
4) On November 6, 2002, Defendant received from Plaintiff byway of Certified United States Mail, copies of health insurance claim forms and medical records aswell as Hector Prieto’s PIP application for no fault benefits and an Attending Physician’s Report showing medical treatment and medical bills sustained as a result thereof forHector Prieto. Said medical bills and treatment were for dates of treatment from October 2, 2002 through October 31, 2002 amounting to $4,360.00 in total medical bills;
5) On December 10, 2002, Defendant received from Plaintiff by way of Certified United States Mail, copies of health insurance claim forms and medical records for medical treatment of Hector Prieto. Said medical bills and treatment were for dates of treatment from November 6, 2002 through November 25, 2002 amounting to $2,550.00 in total medical bills;
6) On January 9, 2003, Defendant received from Plaintiff byway of United States Certified Mail, copies of health insurance claim forms for medical treatment of Hector Prieto. Said medical bills and treatment were for dates of treatment for December 6, 2002 amounting to $305.00 in total medical bills;
7) Defendant did not contest that coverage exists in this case and that the accident took place within the coverage period of Defendant’s insurance policy, and that Hector Prieto was involved in the accident sustaining some type of injury.
8) Plaintiff had met conditions precedent under Defendant’s insurance policy prior to filing the instant case lawsuit.
Defendant has three Affirmative Defenses plead in its Answer. Defendant’s Affirmative Defenses are as follows:
1) As and for its First Affirmative Defense, Defendant states that the Plaintiff is in violation of Florida Statutes 627.736(5)(a). Pursuant to the statute “the insurer providing such coverage may pay for such charges directly to suchperson or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved bythe Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian.” The insured or his or her guardian failed to comply with the statute. Pursuant to the statute, the Defendant has not been furnished with notice of the amount of a covered loss or medical bills due to non-compliance with the statute. As such, Defendant is not responsible for the subject medicalbills;
2) As and for its second Affirmative Defense, Defendant states that Plaintiff failed to properly notify Defendant of the existence of his claim. Defendant states that the Plaintiff failedto provide written notice of the accidentas soon as practicable. Defendant states that Plaintiff unreasonably withheld, from Defendant, notice of the existence of a claim. Accordingly, Plaintiff failed to properly comply with all terms and conditions of the policy which are conditions precedent to the filing of the instant action;
3) As and for its third Affirmative Defense, Defendant states that the Plaintiff medical provider, C & S Medical Clinic, Corp., lacks standing to bring thecurrent action, in that Plaintiff has failed to provide Defendant with avalid assignmentof benefits from the claimant and/or the named insured.
Defendant withdrew all three Affirmative Defenses. Additionally, after having leave to do so, Defendant failed to file an Amended Answer that would have included an Affirmative Defense claiming that Plaintiff’s medical personnel was unlicensed. Since Defendant failed to file an Amended Answer, the unlicensed medical personnel Affirmative Defense was not before the court and therefore is not addressed. The Defendant presents no testimony to dispute the relatedness and necessity of Plaintiff’s medical treatment and bills.
Defendant presents deposition testimony of Dependant’s person with most knowledge regarding this matter, Mary Vojtasek, to dispute the amount of the charges (or reasonableness) of Plaintiff’s medical bills. Defendant sought to use the testimony of Mary Vojtasek to show that Plaintiff’s medical bills were not within the usual, customary and normal charges for chiropractic treatment in Miami-Dade County. It is undisputed that Mary Vojtasek’s deposition testimony referred to a book entitled Physician’s Fee and Coding Guide for the year 2001. Mary Vojtasek used the Physician’s Fee and Coding Guide for the year 2001 to enumerate what she believed that Plaintiff’s charges for medical treatment should have been. It is further undisputed that Defendant failed to attach a copy of the pages from the Physician’s Fee and Coding Guide for the year 2001 that Mary Vojtasek referred to her deposition testimony.
The court found Mary Vojtasek’s testimony regarding reduction Plaintiff’s charges for medical treatment was unreliable and otherwise inadmissible summary judgment evidence as Mary Vojtasek relied upon the Physician’s Fee and Coding Guide for the year 2001 to call into question the charges of medical treatment that took place between October 2, 2002 and December 6, 2002. Accordingly, Mary Vojtasek reliance upon the Physician’s Fee and Coding Guide for the year 2001 was misplaced.
Furthermore, Defendant did attach to its deposition testimony of Mary Vojtasek acopy of the portions of the Physician’s Fee and Coding Guide that MaryVojtasek relied upon to dispute the reasonableness of the charges of Plaintiff’s medical treatment. Florida Rule of Civil Procedure 1.510(e) (2005) requires the following regarding affidavits in a Summary Judgment proceeding:
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth suchfacts 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. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or byfurther affidavits.
The court finds that Rule 1.510(e), Florida Rules of Civil Procedure requiresthat the very portions of the Physician’s Fee and Coding Guide that Mary Vojtasek relied upon in her sworn testimony tobe attached thereto and be made as record summary judgment evidence asdefined under the rule. The trialcourt applied the 2005 rendition of Rule 1.510(e) asboth Plaintiff’s summary judgment motion and Defendant’s opposition thereto were filed in the year 2005.
Since the deposition testimony of Mary Vojtasek could not be used in these proceedings, the court finds that Defendant presented no record admissible evidence to dispute the reasonableness of the charges of Plaintiff’s medical treatment. The Court finds that the Plaintiff met its burden in presenting its Motion for Summary Final Judgment. Since the Defendant had no affirmative defenses and no admissible record Summary Judgment evidence to dispute Plaintiff’s Motion for Summary FinalJudgment, the court grants Plaintiff’s Motion for Summary Final Judgment.
Based upon the undisputed record material evidence and applicable Florida law, this court grants Plaintiff’s Motion for Summary Final Judgment in this case. This court finds that Plaintiff in entitled to $7,215.00 in PIP benefits (less the 80% statutory reduction and applicable to thousand dollar deductible) plus statutory interest.
