13 Fla. L. Weekly Supp. 499c
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Medical provider that was not accredited facility at time MRI was rendered is entitled to payment at 175% of Medicare fee schedule — Misrepresentation — Application — Material misrepresentation defense alleging insured failed to list two relatives residing in household at time of purchasing policy fails where insured states in sworn statement that he lived alone at time he applied for policy and continued to live alone after accident, and insurer has not refunded entire unearned premium — Notice of loss — Where insurer received notice of loss only 53 days after accident, and insurer’s litigation adjuster conceded that she was unaware of any information asked for from insured that he was unable to provide as result of late notice, insurer was not prejudiced by delay in receipt of notice — Final summary judgment granted in favor of provider
OPEN MRI OF MIAMI-DADE, LTD. (a/s/o) Pablo Henville), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 05-2018 SP 23 (4). January 6, 2006. Eli Breger, Senior Judge. Counsel: Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami, for Plaintiff. Oliver Wragg, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court on December 21, 2005 on the Plaintiff’s Motion for Final Summary Judgment, after hearing argument of the parties and being fully advised of the premises thereof, the Court finds as follows:
1. That the insured Pablo Henville was involved in an automobile accident on November 10, 2002.
2. On the date of said accident the Defendant insured Pablo Henville for PIP insurance benefits.
3. On January 31, 2003 Plaintiff rendered MRI services, CPT code 72141, to Mr. Henville. That the Plaintiff received from Pablo Henville an assignment of benefits.
4. Upon the uncontroverted sworn affidavit of Dr. Raymond Ruszkowski, D.C., the Court finds that the MRI was requested by Dr. Ruszkowski, D.C. and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Pablo Henville.
5. The Defendant present no countervailing expert opinion affidavit in opposition to that of Dr. Ruszkowksi, D.C.
6. That Plaintiff’s charges are subject to the fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat. That at the time the services were rendered the Plaintiff was not an accredited facility and is entitled to 175% of the 2001 Medical fee schedule for CPT code 72141 which amount is $1,045.74. Accordingly the amount due the Plaintiff is $836.59 plus interest, attorney’s fees and costs.
7. That Summary Judgment in favor of the Plaintiff is granted as to the defenses of late notice, material misrepresentation by the insured at the time of purchasing the subject insurance policy and reasonable, related and necessary.
As to the defense of material misrepresentation, the Defendant has alleged that the insured failed to list two relatives who alleged resided in his household. The Plaintiff has presented the sworn statement of Mr. Henville wherein Mr. Henville stated that at the time he applied for the insurance policy he lived alone and continued to live alone after the accident. Furthermore, the Court finds that the Defendant has failed to refund the entire unearned premium paid by Mr. Harriston for the policy. Based upon the foregoing facts the Defendant’s material misrepresentation defense must fail as a matter of law.
The Plaintiff is entitled to a summary judgment as to the defense of late notice. The record evidence shows that the Defendant received notice of the loss only 53 days after the accident. Furthermore, the Defendant’s litigation adjuster in deposition admitted that Mr. Henville attended an examination under oath at which he was able to provide all the information requested of him and that Mr. Henville attended a medical exam at the request of the Defendant. The Defendant’s adjuster ultimately conceded that she was not aware of any information that was asked of Mr. Henville during the investigation of the claim that he was unable to provide as a result of the alleged late notice. Accordingly, no reasonable interpretation of the facts could lead to a finding that the Defendant was prejudiced by the 52 days “delay” of receipt of notice of the loss.
Based upon the foregoing it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is Granted.
In accordance with the above findings, IT IS HEREBY ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, OPEN MRI OF MIAMI-DADE, LTD. (as assignee of Pablo Henville) of 19082 N.E. 29th Avenue, Aventura, FL 33180, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $836.59, as outstanding PIP benefits, and the amount of $157.23 (980 days) as statutory interest commencing on April 1, 2003, for a total judgment against the Defendant in the amount of $993.82 which amount shall bear interest at the rate of 7% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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