13 Fla. L. Weekly Supp. 629c
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Medical provider’s motion for summary judgment is denied where affidavit of insurer’s medical expert is sufficient to create genuine issue of fact — Section 627.736(4)(b) permits insurer to raise defense of reasonableness at any time, even after 30-day period for payment has expired
DEBRA BIRNBAUM, D.C. (Kristin Lawton), Plaintiff, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502005SC003350XXXXMB, Division RJ. March 14, 2006. Sandra Bosso-Pardo, Judge. Counsel: Joseph G. Murasko, Vernis & Bowling of Palm Beach, P.A., North Palm Beach. Gary Russo, West Palm Beach.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court for hearing on February 27, 2006 on Plaintiff’s Motion for Summary Judgment. The Court having heard argument of counsel and being otherwise fully advised in the premises, finds as follows:
The Affidavit of Dr. Costello was sufficient to create a genuine issue of fact precluding summary judgment. AIU Insurance Company v. Charles Daidone, 760 So.2d 1110 (4th DCA 2000); United Auto v. Rodriguez, 808 So.2d 82 (Fla. 2002); and Fla. Stat. 627.736(4)(b) which provides:
. . .itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence. However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment. For the purpose of calculating the extent to which any benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery. This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
This subsection, (a recent amendment to the Statute) is too new for decisional law interpreting it at any level (circuit, district, Florida Supreme Court) which would be binding on this Court, or at least none has been submitted to the Court by the parties or located by the Court. The Court, therefore, construes it in its plain meaning, which says that the carrier can raise the defense of reasonableness at any time, even after the 30-day period has expired.
Therefore, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is denied.
