13 Fla. L. Weekly Supp. 194a
Insurance — Personal injury protection — Coverage — Medical expenses — Medical provider has made prima facie showing of entitlement to recovery of PIP benefits where provider has established through affidavits and examination under oath that insured was involved in motor vehicle accident, there is no dispute that insured was covered by insurer’s PIP policy, and provider has established through physicians’ affidavits that treatment was reasonable, related and necessary — Affirmative defenses — Notice of loss — Defense of untimely notice of loss fails where insured testified in EUO that she called insurance agent on date of accident
HEALTH CARE MEDICAL GROUP (a/a/o Elvia Lumbi), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-14741 COCE 53. November 8, 2005. Robert W. Lee, Judge. Counsel: Kathy Eikosedakes, Marks & Fleischer, P.A., Fort Lauderdale. John Wien, Coral Gables.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on October 18, 2005 for hearing of the Plaintiff’s Motion for Final 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: This is a suit for No Fault benefits pursuant to Fla. Stat. §627.736 for treatment rendered by the Plaintiff to Elvia Lumbi. The Plaintiff has alleged that it provided treatment to Elvia Lumbi and in exchange accepted an assignment of benefits which permits the Plaintiff to litigate the rights of Elvia Lumbi to benefits under the insurance policy issued by United Automobile Insurance Company.
The Plaintiff has further alleged that on August 30, 2002, Elvia Lumbi was involved in a motor vehicle accident, and that a result of such motor vehicle accident, she sustained injuries for which she sought treatment from the Plaintiff, Health Care Medical Group, for dates of service from September 5, 2002 through November 21, 2002 under the care of both Dr. Carlos Aguilar, M.D., and Dr. Tanya Kahl, D.C., who timely billed for their services. Defendant has failed to pay any bills.
At the time of the filing of the Motion, the Defendant had two outstanding affirmative defenses. First, that the patient failed to provide notice of the accident until 24 days after its occurrence and as a result has forfeited any rights she had under the policy. Second, that the Plaintiff was involved in fraudulent conduct and as a result no payment is owing. The Plaintiff argues that the Defendant’s defenses fail as a matter of law.
On September 26, 2005, the Plaintiff filed its Motion for Final Summary Judgment which was set before the Court for hearing for October 18, 2005.
Conclusions of Law. Summary Judgment is appropriate where 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 Elvia Lumbi 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.
Prima Facie Case. The Plaintiff has a 3 prong prima facie showing that must be met for an entitlement to recovery in a personal injury protection suit: (1) an injury resulting from an accident with an automobile; (2) coverage under a policy of insurance that was in full force and effect on the date of the accident; and (3) treatment rendered that was reasonable, related to the accident, and medically necessary. Plaintiff has made a prima facie showing as follows:
i. Injury as a result of a Motor Vehicle Accident
On August 30, 2002 Patient/assignor, Elvia Lumbi was injured as a result of a motor vehicle accident. Established by Notice of Filing, Affidavits of treating Doctors, Dr. Tanya Kahl, D.C. and Dr. Aguilar, M.D. and Notice of Filing Examination Under Oath of Elvia Lumbi, pages 12-13.
ii. Coverage under Defendant’s Policy of Insurance
There is no dispute that the patient/assignor, Elvia Lumbi was covered under a policy of insurance that was in full force and effect on the date of the accident. Established by Defendant’s Answer #17 to Plaintiff’s Request for Admissions.
iii. Plaintiff’s services were reasonable, related to the motor vehicle accident of August 30, 2002 and medically necessary.
Fla. Stat. §627.736 requires that the insurer must obtain reasonable proof that it is not responsible for payment, otherwise, the bills are considered overdue. See §627.736(4)(b), which states in relevant part:
Personal injury protection insurance benefits paid pursuant to this section shall be 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.
However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer.
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 period 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 United Automobile Ins. Co. v. Viles, 726 So.2d 320, 320 (Fla. 3d DCA 1988). 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 Fla. L. Weekly Supp. 146, 148 (Miami-Dade Cty. Ct. 2003). The undisputed facts establish that the Defendant has declined to pay the claim. As a result, the Court holds that when the insurer denied the claim, it “withdrew the payment” payable under the P.I.P. policy. See also Edward J. Garrido, D.C., P.A., v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 970, 972-73 (Miami-Dade Cty. Ct. 2005).
The Plaintiff has filed the affidavit of treating doctors, Dr. Carlos Aguilar, M.D. and Dr. Tanya Kahyl, D.C., attesting to the fact that the treatment rendered for dates of service from September 5, 2002 through to November 21, 2002 was in fact reasonable, related to the accident and medically necessary. See Notice of Filing affidavits of Dr. Carlos Aguilar, M.D. and Dr. Tanya Kahyl, D.C.
Plaintiff has an assignment of benefits and incurred $6,570.00 in medical expenses for treatment rendered to Elvia Lumbi for dates of service from September 5, 2002 through to November 21, 2002 for injuries arising from an automobile accident. Said amount was billed and submitted to United Automobile in a timely manner.
See Affidavit of Henry Madueno.
As such, Plaintiff has made its prima facie showing of all the elements necessary to support a claim for personal injury protection benefits.
Late Notice Defense. In Count I of its Answer, United raises as an affirmative defense that notice of the “loss” was untimely in violation of the insurance contract because it was not as soon as practicable. However, this defense fails as a matter of law.
During the examination under oath of the claimant, Elvia Lumbi testified that after the accident she did in fact call her insurance agent. See Notice of Filing, Examination Under Oath of Elvia Lumbi, page 15, line 15-end, page 16, line 1-14. Defendant did have notice through its agent on the day of the accident. Notice to its agent is notice to the company. See Amstar Ins. Co. v. Cadet, 862 So.2d 736, 740 (Fla. 5th DCA 2003) (“As a general rule, an insurance broker acts as the agent of the insured.”); Johnson v. Life Ins. Co. of Ga., 52 So.2d 813 (Fla. 1951) (Where soliciting and collecting agent of insurance company learned two months after policy was issued that insured had gone to tuberculosis sanitarium, such knowledge of agent was imputable to principal whether disclosed by agent or not and company was bound by such knowledge.)
Furthermore, Rule 4-166.021 of the Florida Administrative Code on definitions of insurance terms provides in relevant part:
(8) “Notification of a claim” means any notice to an insurer or its agent by a claimant or insured that reasonably apprises the insurer that a loss has occurred.
(9) “Notice of loss” means:
. . .(b) Any notice by or on behalf of a claimant that reasonably apprises the insurer that a loss has occurred and that the claimant wishes to make a claim under an insurance policy against a person insured under an insurance policy for such loss.
The Defendant has filed nothing to raise a disputed fact on this issue. Therefore, as Defendant had notice through its agent, Defendant’s late notice defense must fail as a matter of law.
Fraud Defense. In Count III of its Answer, Defendant alleges that the Plaintiff submitted fraudulent bills in that there was no injury at the scene of the accident, no emergency treatment or emergency medical services, and there was minor impact to the vehicles involved. At the hearing, however, the Defendant withdrew this defense on the record, so it is no longer an issue. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED. Plaintiff shall submit a proposed Final Summary Judgment which conforms to the terms of this Order.
