13 Fla. L. Weekly Supp. 1205b
Insurance — Personal injury protection — Coverage — Denial — Failure to obtain physician’s report — Where insurer failed to obtain physician’s report prior to denying payment, defense that bills were not reasonable or necessary is barred — Insurer’s definite and unconditional repudiation of contract discharged any further obligation for medical provider to attempt to comply with conditions precedent to recovery or cure alleged notice defects
FLORIDA MEDICAL ASSOCIATES AS ASSIGNEE OF MARITZA CASILLAS, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005-30502 COCI. October 4, 2006. H. Pope Hamrick, Jr., Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Lynn S. Alfano, Maitland.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court for consideration, and the Court having heard arguments of counsel and being otherwise fully advised, it is hereby
CONSIDERED, ORDERED AND ADJUDGED:
1. Plaintiff’s Amended Motion for Final Summary Judgment is hereby granted.
2. As it pertains to Florida Statute 627.736(7)(a), to withhold payment of an insured’s benefits is indistinguishable from withdrawing payments.
3. Florida Statute 627.736(7)(a) requires that:
An insurer may not withdraw payment of a treating physician without the consent of the injured person covered bythe personal injury protection, unless the insurer first obtains a valid report by aFlorida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related or necessary.
4. Progressive is barred from raising the defense that the bills were not reasonable or necessary because it failed to obtain a physicians report prior to denying payment. United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999).
5. Plaintiff provided bills and statements as reasonable proof of the loss and provided sufficient written notice of the covered loss and of the amount of same.
6. Progressive’s correspondence to Plaintiff prior to litigation stated:
“This letter will notify you that Progressive will not be making any voluntary payment in accordance with the demand because Progressive’s investigation has indicated that your clinic has a pattern and practice of billing for services that it is not rendering to its patients including this patient.”
7. Progressive’s definite and unconditional repudiation of the contract discharged any further obligation on the part of Florida Medical Associates to attempt to comply with conditions precedent or cure any alleged notice defects. The correspondence breached the contract and Progressive thereby waived any right to insist upon any then futile attempts to comply with various conditions precedent to recovery.
8.The Plaintiff shall recover from Progressive the sum of $3,781.60 (80% of the $4,727.00 total) for which sum let execution issue.
9. The court reserves jurisdiction for attorney fees and costs.
