13 Fla. L. Weekly Supp. 191b
Insurance — Personal injury protection — Evidence — Affidavits faxed from insurer to medical provider are not legally sufficient to create disputed issue of material fact where fax did not comply with rule 1.080(b)(5) requirements to contain cover sheet, notation of number of pages transmitted, and sender’s fax number — Court will not consider peer review report which is not supported by affidavit but does contain verification language — Examination under oath — Failure to attend — There was no breach of contract by insured failing to attend EUO requested by insurer more than thirty days after receipt of notice of claim — Coverage — Medical expenses — Reasonable, related and necessary treatment — Insurer cannot rely on report of chiropractor that conducted independent medical examination more than two months after treatment was begun to defeat provider’s motion for summary judgment where report opines that future treatment would not be necessary, but does not state that previous treatment rendered was not reasonable, related or necessary — Peer review report obtained one year and eight months after bills were submitted is untimely and does not meet statutory requirement to obtain medical report prior to withdrawing payment — No merit to argument that medical report is only required when insurer had decided to pay claim and then changes its mind, not in the event of out-right denial of coverage — Admissions — Where insurer did not timely respond to request for admissions or obtain relief from admissions, insurer has admitted that provider is entitled to relief it seeks — Summary judgment granted in favor of provider
COUNTY LINE CHIROPRACTIC CENTER, INC. (a/a/o Deja Carroll), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-5293 COCE 53. December 6, 2005. Robert W. Lee, Judge. Counsel: Laura Watson, Ft. Lauderdale, for Plaintiff. Leandro E. Lissa, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This cause came before the Court on December 1, 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. The Plaintiff filed a two count Complaint. Count I seeks unpaid PIP benefits and interest. Count II seeks a declaratory judgment ruling as to whether the Defendant can deny coverage based upon the defense that the named insured/legal guardian of claimant Deja Carroll failed to submit to an examination under oath (EUO) for December 18, 2002 or December 26, 2002, and therefore whether the insured failed to fully comply with the terms and conditions of the subject policy.
The following facts are undisputed: Deja Carroll, a minor, was involved in a motor vehicle accident as a passenger on August 27, 2002. As a result of said accident, Deja Carroll obtained chiropractic treatment from Plaintiff, County Line Chiropractic Center, Inc. While under the supervision of County Line Chiropractic Center, Inc., Deja Carroll received a number of treatment services which were as follows: ultrasound, chiropractic manipulation; hot/cold packs; and traction. Plaintiff submitted to the insurer the sum of $4,190.00 in chiropractic expense for these services. Eighty percent of this amount is $3,352.00. (This amount was confirmed by the adjuster, Luisa Gonzalez, in her deposition taken on August 3, 2005, p. 33, ll. 2-13.) The insurer did not pay any of the expenses incurred by the Plaintiff.
County Line Chiropractic Center, Inc. treated the claimant from August 28, 2002 through the last treatment date of November 14, 2002. (Depo. of Gonzalez, pp. 29-33 and exhibit 9 to deposition confirmed these treatment dates.) It was not until November 6, 2002 that Deja Carroll was requested to submit to an independent medical examination pursuant to Fla. Stat. §627.736(7), for which she appeared. On December 18, 2002, subsequent to the IME and the completion of all of County Line’s chiropractic treatment, United Automobile confirmed that the insurer was entitled to PIP benefits until December 26, 2002. (Depo. of Gonzalez, pp. 35-36 and exhibit 12 to deposition confirming all of the Plaintiff’s treatment dates preceded the suspension date.) Plaintiff then filed the instant lawsuit against the insurer for failure to cover eighty percent of these expenses in accordance with the policy of insurance. Prior to the lawsuit, the insurer did not advise Deja Carroll, her guardian, or the Plaintiff that coverage was denied on the basis that the claimant failed to appear at an examination under oath or that a physician had opined that treatment rendered by the Plaintiff was not reasonable in price. (Depo. of Gonzalez, p. 38, ll. 3-20 and pp. 39-42.)
After suit, Gonzalez reviewed the file and then determined after the fact that it had two reasons not to pay:
1) The adjuster’s review of the file showed a failure to show up for the examination under oath to verify the treatment, and
2) The adjuster requested a peer review because the claim involved chiropractic treatment of a six-year-old child and based upon the adjuster’s review she found the charges to be above the usual and customary charges. (Depo. of Luisa Gonzalez, p. 39, l. 19- p. 40, ll. 1-8). Indeed, it was not until one year and eight months after suit was filed that the Defendant sought a review of the charges by a chiropractic physician.
Other than these two reasons, there were no other stated reasons that these bills were not paid. (Depo. of Luisa Gonzalez, p. 42, l. 16 – p. 43, ll. 1-3.)
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 Deja Carroll was reasonable, medically necessary, and related to the accident, and whether Deja Carroll is excused from attending the EUO. 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.
1. Faxed Affidavits in Opposition. Two days before the hearing, the Defendant faxed to Plaintiff’s counsel two affidavits which the Defendant argues demonstrates disputed issues of material fact. The Defendant argues that the faxing of these affidavits meets the requirements of Rule 1.510(c). The Plaintiff counters that this is true, but only if the fax meets the requirements of Rule 1.080(b)(5). The Court agrees. The Defendant’s fax did not comply with the rule. It did not contain a cover sheet. It did not contain the “number of pages transmitted,” necessary for the Plaintiff to know if it received the entire fax. Finally, it did not include the sender’s fax number. The Plaintiff argues that the fax is legally insufficient and should be stricken, and the Court agrees.
United Automobile points out that Dr. Merritt’s peer review was previously filed of record on January 27, 2005, although without support affidavit. The Defendant urges this Court to consider the previously filed peer review because, although not supported by affidavit, it does contain verification language. This Court has previously rejected this argument. See Jackson v. State, 881 So.2d 666, 667-68 (Fla. 5th DCA 2004) (when a statute specifically requires an affidavit, attempt to use verification procedure is deficient); 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). However, even if the faxed affidavits were considered by the Court, the Court finds them to be otherwise legally insufficient to raise a disputed issue of material fact, as set forth hereinafter.
2. Request for Examination Under Oath. In the case at bar, the Defendant received notice of the accident on August 27, 2002, the date of the accident, when United Automobile received a call from the insured who advised that she had been rear-ended. (Depo. of Luisa Gonzalez, p. 16, ll. 12-25 and p. 17, ll. 1-7.) After United Automobile received notice of the accident, it sent the insured a statement of driver. This form requested information on how the accident in question occurred. This form was returned to United Automobile by the insured on September 24, 2002. (Depo. of Luisa Gonzalez, p. 20, l. 16 and p. 17, ll. 1-14 and marked as Plaintiff’s Exhibit 6 to Depo., p. 23.)
Despite notification of the claim, the Defendant did not send a notice for examination under oath to the parent or guardian of Deja Carroll until December 9, 2002, four months after the Defendant was notified of the accident. (Depo. of Luisa Gonzalez, p. 25, ll. 3-8, Exhibit 7.) Thus, the request for an EUO was untimely under State Farm Mutual Automobile Ins. Co. v. Jenkins, 767 So.2d 622, 622-23 (Fla. 4th DCA 2000); and Amador v. United Automobile Ins. Co., 748 So.2d 307, 308-09 (Fla. 3d DCA 1999). A PIP insurer cannot request an EUO after 30 days of the notice of claim, and then use the failing to appear as an excuse not to pay the claim. Hence, there is no breach of contract by the insured by failing to attend such an EUO.
3. Untimely and Insufficient Physicians’ Reports. The Defendant attempts to rely on two reports from two different chiropractors to assert that the treatment rendered was not reasonable, related, or necessary for the injuries sustained in the accident in issue. The first report by Dr. Sentner is dated November 6, 2002 and the second report by Dr. Merritt is dated November 10, 2004. Neither report can be relied upon by the Defendant to defeat the Plaintiff’s Motion for Summary Judgment as neither is supported by the appropriated evidentiary and statutory foundation to present the evidence to the Court.
The first report by Dr. Sentner, rendered on November 6, 2002, was written after an examination of the insured. His report, however, does not state that the Plaintiff’s previous treatment rendered to the insured was not reasonable, related, or necessary. Indeed, it opines that future treatment would not be necessary.
All of the Plaintiff’s treatment in issue was rendered between August 28, 2002 and November 14, 2002. Dr. Sentner’s report was dated November 6, 2002. Although the Defendant could have attempted to rely on this report to argue that some of the treatment was not necessary, it chose not to do so. Instead, it advised the insured that they would not pay for any treatment after December 26, 2002.
In the case at bar, it is undisputed that United Automobile received County Line’s medical bills. Yet, United Automobile did nothing, not even deny the claim or assert a coverage defense until after the lawsuit was filed. Prior to that, United Automobile did not write its insured or County Line and advise that it was denying, reducing or not paying the covered PIP benefits. The Supreme Court of Florida addressed this very conduct in the leading case of Tiedtke v. Fidelity & Casualty Company, 222 So.2d 206, 209-10 (Fla. 1969). In that case, the court held that if “an insurer intends to stand on any forfeiture reservation, it should inform the insured as soon as practicable after it has ascertained facts upon which it bases its forfeiture.” Id. at 209. In the Tiedtke case, the insurer informed an insured a year and a half after it had provided a defense without disclaiming liability, that it was now denying coverage. This denial was not given within a reasonable time and was, therefore, ineffective. Likewise, United Automobile’s refusal to pay or deny the bills and never informing the claimants or the insured that it intended to assert a coverage defense or not paying its medical bills is unreasonable and untimely and therefore, ineffective as a matter of law.
Next the Defendant attempts to rely on the report of Dr. Merritt dated November 10, 2004, written one year and eight months after suit. This report does not meet the statutory requirements for denying or reducing medical bills and is therefore invalid.
Dr. Merritt’s report is untimely under §627.736(7)(a), as supported by the plain meaning of the statute. Section 627.736(7)(a) states in relevant part that “[a]n insurer may not withdraw payment of a treating physician without consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician. . . stating that treatment was not reasonable, related or necessary” (emphasis added). In the present matter, the Plaintiff presented prima facie evidence that the subject bills were covered medical expenses. After Plaintiff filed suit and approximately one year and 8 months after bills were first submitted, the insurer produced Merritt’s report; thus, the insurer is placing the “cart before the horse.” See also United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1988).
Under Florida law, PIP benefits are “overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” Fla. Stat. §627.736(4)(b). This 30-day provides the insurer a safe harbor to avoid payment of any penalties, interest and attorney’s fees. However, failure to pay or obtain reasonable proof within 30 days does not operate as a waiver of the insurer’s right to thereafter contest the bills as being unreasonable, not related to the accident, or not medically necessary. United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001). The problem for the insurer is not the failure to authenticate the claim within 30 days, but rather the failure to obtain a medical report prior to the withdrawal of PIP benefits in this case. Fla. Stat. §627.736(7). So, while the insurer does not lose its right to contest whether a bill is reasonable, related or medically necessary if it fails to obtain “reasonable proof” within 30 days, it still must obtain a medical report before it can thereafter withdraw benefits. See Viles, 726 So.2d at 320. See also United Automobile Ins. Co. v. Rodriguez, 808 So.2d 82, 89 (Fla. 2001) (Pariente J. concurring); Optima Health v. Rehab v. United Automobile Ins. Co., 11 FLW Supp. 146, 148 (Miami-Dade Cty. Ct. 2003); A-1 Mobile MRI v. United Automobile Ins.Co., 12 FLW Supp. 1097 (Broward Cty. Ct. 2005). The undisputed facts establish that the Defendant decided not to pay the claim well before it obtained the physician’s report. The Defendant argues, however, that the “withdrawal” of benefits requires that the insurer had decided to pay the claim, then later changed its mind. The Court disagrees. Therefore, it is unnecessary for the Court to consider the Plaintiff’s argument that the peer review report is also defective due to failure of the physician to conduct a physical examination of the patient. See Fla. Stat. §627.736(7).
The reading of the word “withdraw” urged by United Automobile defeats the purpose of the No Fault law because it permits the practice of an “out-right” coverage denial absent reasonable proof and produce a physician’s report at any time thereafter, including after suit, to justify non coverage on a medical basis. See Lasky v. State Farm Ins. Co., 296 So.2d 9, 16 (Fla. 1974). To permit a PIP insurer to present countervailing expert medical testimony absent an IME will frustrate the purpose of the No Fault law; it will encourage PIP insurers to litigate medical necessity without fear of reprisal for not exercising its investigative rights where the result of an IME may prevent the cost of litigation and further congestion to an already voluminous court docket. Such an outcome does not serve the purpose of the No Fault law; which is intended to provide courts relief from its congested dockets. See Lasky, 296 So.2d at 16.
4. Failure to Obtain Relief from Admissions. The Plaintiff served its First Request for Admissions on April 3, 2003, more than two years ago. The Defendant did not timely respond. Despite the passing of more than two years, the Defendant failed to obtain relief from admissions. As a result, and as separate grounds for entry of this summary judgment, the Defendant has admitted that the Plaintiff is entitled to the relief it is seeking. Florida Dep’t of Financial Services v. Tampa Service Company, Inc., 884 So.2d 252, 253 (Fla. 1st DCA 2004) (mere filing of motion for relief from admissions is insufficient). See also Farish v. Lum’s Inc., 267 So.2d 325, 327-28 (Fla. 1792) (“inadvertence” not sufficient to grant relief from admissions); United Automobile Ins. Co. v. Ron Wechsel, D.C., Order on Appeal, Case No. 04-18908 CACE 25 (Fla. 17th Cir. Ct. July 19, 2005); A-1 Mobile Diagnostics, Inc. v. United Automobile Ins. Co., Order Denying Defendant’s Motion to Grant Relief from Admissions, Case No. 04-19563 COCE 53 (Broward Cty. Ct. Oct. 18, 2005). Accordingly, it is hereby
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.
