13 Fla. L. Weekly Supp. 162c
Insurance — Personal injury protection — Independent medical examination — Insurer waived right to suspend PIP benefits as of date of first missed IME by rescheduling IME for later date — Insurer is responsible for all bills received prior to second missed IME — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment is granted in favor of medical provider on issue of reasonable, related and necessary expenses and usual and customary charges for all bills in dispute where provider provided affidavit of chiropractor opining that services were reasonable, related and necessary and charges were usual and customary, and insurer did not file any opposing affidavits — Affirmative defenses of notice and material misrepresentation that were not pled by insurer are waived — Examination under oath filed on day of summary judgment hearing is untimely — EUO that was not taken under oath at trial, hearing or other legal proceeding and was not subject to cross-examination is inadmissible hearsay — Even if not untimely or inadmissible, EUO does not create genuine issue of material fact on issues before court — Reasonableness of failure to attend second IME is only remaining disputed issue
HOLLYWOOD PAIN RELIEF CENTER, a/a/o Jose Escamilla, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-29478 SP 23 (01). June 10, 2005. Eli Breger, Senior Judge. Counsel: Craig H. Blinderman, Mrejen Blinderman, P.L., Fort Lauderdale; and Mary-Margaret Warren, for Plaintiff. Wendy Brewster Maroun, for Defendant.
AGREED ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on April 5, 2005 on Plaintiff’s Motion for Partial Summary Judgment and the Court having reviewed the motion, having heard argument of counsel and being otherwise advised in the premises, it is hereby,
The Court makes the following findings of undisputed fact:
1. This is an action involving personal injury protection (“PIP”) benefits.
2. Plaintiff rendered services to Jose Escamilla May 16, 2002 thru January 14, 2003.
3. All treatment at issue was rendered by a chiropractic physician.
4. Plaintiff’s bills for dates of service May 16, 2002 thru July 3, 2002 in the amount of $2,981.00 were received by Defendant on July 30, 2002.
5. Plaintiff’s bill for date of service July 24, 2002 in the amount of $443.00 was received by Defendant on August 7, 2002.
6. The Defendant scheduled two chiropractic IMEs (Independent Medical Exam) for Jose Escamilla on August 12, 2002 and August 28, 2002.
7. Jose Escamilla did not attend either of the chiropractic IMEs and Defendant suspended PIP benefits as of the first IME date of August 12, 2002.
8. All of Plaintiff’s bills for dates of service May 16, 2002 through July 24, 2002 were received by Defendant prior to both chiropractic IMEs scheduled by the Defendant.
9. The bills for dates of service May 16, 2002 thru July 24, 2002 total $3,424.00. Eighty percent (80%) of these bills is $2,739.20.
10. Defendant has not paid any of Plaintiff’s bills.
11. On or about September 8, 2003, Defendant, United Automobile Insurance Company (“Defendant”) filed its Answer and Affirmative Defenses. Defendant pled a total of five Affirmative defenses.
12. Plaintiff filed a Motion to Strike Defendant’s Affirmative Defenses followed by an Amended Motion to Strike Affirmative Defenses.
13. On February 3, 2005, Plaintiff’s Amended Motion to Strike Affirmative Defenses was heard by the Court. The Court struck Defendant’s second, fourth and fifth affirmative defenses and gave Defendant twenty (20) days, until February 23, 2005 to file an amended answer and affirmative defenses.
14. Defendant did not amend its affirmative defenses.
15. On February 28, 2005, Plaintiff filed a motion for partial summary judgment and noticed same for hearing.
16. On April 5, 2005, Plaintiff’s Motion for Partial Summary Judgment was heard by the Court. As of the April 5, 2005 the Defendant had two affirmative defenses remaining, its first and third affirmative defenses.
17. Attached to Plaintiff’s Motion for Summary Judgment was the affidavit of chiropractic physician, Dr. David Romano, who opined that all services rendered by Plaintiff were reasonable, medically necessary and related to the subject motor vehicle accident and that charges for all services were usual and customary.
18. The Defendant did not file an opposing affidavit stating that Plaintiff’s services were not reasonable, not medically necessary or not related to the subject motor vehicle accident or that Plaintiff’s charges were not usual and customary.
The Court makes the following conclusions of law:
1. As to Defendant’s first affirmative defense alleging Jose Escamilla failed to attend the IMEs scheduled by Defendant, the Court finds the following:
a. F.S.§627.736(7)(a) provides that an insurer may not withdraw payment to a treating physician without first obtaining a valid report by a physician licensed under the same chapter as the treating physician stating that the services rendered were not reasonable, not medically necessary and/or not related to the subject motor vehicle accident. The Defendant does not have such a report.
b. An abundance of case law supports Plaintiff’s argument that the Defendant is responsible for all bills received by the Defendant prior to the missed IME. See U.S. Security v. Silva, 593 So.2d 593 (Fla. 3d DCA 1997); United Auto Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998); De Ferrari v. Government Employees Ins. Co., 613 So.2d 101, 103 (Fla. 3d DCA 1993); United Auto v. Turner, 9 Fla. L. Weekly Supp. 817b (Fla. 11th Cir. App. 2002); Fonesca v. Star Casualty, 10Fla. L. Weekly Supp. 865 (Fla. 11th Cir. App. 2003); and United Automobile Ins. Co. v. Hector De La O, 7 Fla. L. Weekly Supp. 242 (Fla. 11th Cir. App. 2000).
c. The Defendant waived its right to suspend PIP benefits as of first IME of August 12, 2002 by rescheduling the IME for August 28, 2002. See Tomas v. U.S. Security Ins. Co., 9 Fla. L Weekly Supp. 21 (Fla. 11th Cir. App. 2001).
d. There are no genuine issues of material fact in dispute as to Defendant’s first affirmative defense for all bills received by Defendant prior to the IME cut-off date of August 28, 2002.
e. The Defendant is hereby ordered to pay all bills for medical services that it received prior to August 28, 2002.
2. As for Defendant’s third affirmative defense alleging Plaintiff’s medical expenses are not reasonable, related to an accident or medically necessary based on the opinion of Dr. Kallan, M.D. the Court finds the following:
a. All of the bills at issue are for services rendered by a chiropractic physician. Pursuant to F.S. §627.736(7)(a), in order for the Defendant to suspend PIP benefits, Defendant must have obtained a report from a chiropractic physician stating that the medical services rendered were not reasonable, medically necessary and/or not related to the subject motor vehicle accident. The Defendant did not obtain such a report.
b. The Plaintiff provided the affidavit of chiropractic physician, Dr. Romano. Dr. Romano’s report opined that all services rendered by Plaintiff were reasonable, medically necessary and related to the subject motor vehicle accident and that all of Plaintiff’s charges were usual and customary.
c. The Defendant did not file any affidavits in opposition.
d. There are no genuine issues of material fact in dispute as to Defendant’s third affirmative defense on the issues of reasonable, medically necessary, related and usual and customary.
e. Plaintiff is hereby granted summary judgment on the issues of reasonable, medically necessary, related and usual and customary for all bills at issue.
3. Other legal findings:
a. Plaintiff has met its prima facie burden of proving that the services rendered to Jose Escamilla were reasonable, medically necessary, related to the subject motor vehicle accident and that the charges were usual and customary.
b. Defendant’s counsel attempted to argue the affirmative defenses of notice and material misrepresentation. However, these affirmative defenses were not pled by Defendant and were therefore not before the Court for consideration. It is well established that affirmative defenses that are not pled are waived. See Rule 1.140(b), F.R.Civ.P. There are only a few exceptions to this rule and none of the exceptions exist in the instant case.
c. The day of the hearing, Defendant filed the examination under oath (“EUO”) of Jose Escamilla. The filing of this EUO is untimely pursuant to Rule 1.510(c), F.R.Civ.P.
d. The EUO of Jose Escamilla was not given under oath at a trial, hearing, or other legal proceeding and was not subject to cross-examination. Therefore, the EUO is inadmissible hearsay evidence pursuant to the Florida Evidence Code.
e. Even if the filing of the EUO were not untimely or inadmissible, it does not create a genuine issue of material fact for any of the issues before the Court.
f. The only material issue remaining in dispute is whether Jose Escamilla unreasonably refused to attend Defendant’s IME and is therefore not responsible for payment of bills received after the IME cut-off date.
g. Plaintiff is entitled to reasonable attorneys’ fees and taxable costs pursuant to F.S. §627.428 for securing these PIP benefits.
It is ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is Granted and Defendant is ordered to pay eighty percent (80%) of all bills received before August 28, 2002 to the amount of $2,739.20 plus applicable interest in the amount of $241.12 for a total judgment in the amount of $2,980.32.
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