13 Fla. L. Weekly Supp. 101a

Insurance — Personal injury protection — Notice of loss — Insured’s motions for directed verdict and judgment notwithstanding verdict, following verdict determining that insurer did not receive reasonable notice of loss, are granted — Correspondence from insured to insurer requesting that hospital bill for gastric bleed occurring one year after automobile accident be processed for payment with enclosed hospital bill stating that physician charges will be billed separately and later letter specifically requesting payment for physicians in certain amount satisfied requirement for notice of loss and amount of loss for services provided by physicians — No merit to argument that insured was required to provide insurer with medical bill for physicians’ services or medical records to establish reasonable proof of covered loss where bill would not assist insurer in determining whether hospitalization for gastric bleed was related to accident, PIP statute did not require insured to furnish insurer with bill or records, and insured fulfilled any obligation to provide medical records by signing authorization allowing insurer to obtain records — No merit to argument that insured’s cause of action on claim based on second more specific letter sent after complaint was filed was premature since 30-day period to pay claim had not expired at time complaint was filed where premature element of cause of action was cured by passage of time as claim matured and benefits subsequently became overdue 30 days after insurer’s receipt of letter — Insurer’s recourse for premature claim was to either seek dismissal without prejudice or to seek stay or abatement of action until claim ripened, which it did not do — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where insured’s experts testified credibly that insured’s use of aspirin and other non-steroidal and anti-inflammatory medicines was likely cause of gastric bleed resulting in hospitalization, insured testified credibly that she consumed medicines on almost daily basis following accident, and insurer failed to present own expert in rebuttal or to substantially discredit or severely impeach testimony of insured’s experts, insured is entitled to summary judgment on issue of relatedness of treatment to accident — Further, insured is entitled to summary judgment on relatedness issue due to insurer’s failure to comply with statutory requirement to obtain report from physician licensed under same statute as treating physicians before it could challenge reasonableness, relatedness or necessity of treatment rendered

PAULA WALSH ROUSSELLE, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, Defendant.County Court, 13th Judicial Circuit, Hillsborough County, Civil Division. Case No. 97-11521-CC, Division “J”. November 14, 2005. Elizabeth G. Rice, Judge. Counsel: Helen Stratigakos, Tampa, for Plaintiff. Robert H. Oxendine, Tampa, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT OR, ALTERNATIVELY, MOTION FOR JUDGMENT NOT WITH STANDING THE VERDICT, AND DENYING PLAINTIFF’S MOTION FOR NEW TRIAL

THIS CASE came before the Court on September 14, 2005, on Plaintiff’s Motion for Directed Verdict or, alternatively, Motion for Judgment Notwithstanding the Jury Verdict and Motion for New Trial (collectively, the “Motions”). The Court having presided over the jury trial of this case; having considered the pleadings, together with the entire record; having heard argument of counsel; having reviewed the parties’ legal memoranda and applicable Florida law; and otherwise being fully advised in the premises, hereby makes the following findings of fact and conclusions of law.

Findings of Facts

Plaintiff, Paula Walsh Rousselle (“Plaintiff”), filed this personal injury protection (“PIP”) case against defendant, State Farm Mutual Automobile Insurance Company (“Defendant”), on July 16, 1997, seeking payment of PIP benefits under an insurance policy in effect at the time Plaintiff was involved in an automobile accident that occurred on March 10, 1993 (the “Accident”). After the Accident, Plaintiff timely furnished Defendant with a properly executed application for no-fault benefits, together with authorizations for Defendant to obtain information necessary for the prompt payment of all submitted claims. In particular, Plaintiff signed an authorization for the release of medical records on or about April 11, 1993.

As a result of the Accident, Plaintiff suffered neck and back pain and sought treatment with Dr. Robert Martinez, a local neurologist. Dr. Martinez diagnosed Plaintiff with having a herniated disc and toward the conclusion of her treatment, advised Plaintiff to take over-the-counter aspirin and other non-steroidal anti-inflammatory medications to relieve any continuing pain she may experience. During a trip to New Orleans in late 1994, Plaintiff fell ill and was hospitalized at the Tulane University Medical Center from November 29, 1994, through December 2, 1994 (“the Hospitalization”). During her Hospitalization, Plaintiff was treated by a Dr. Louis Lambiase, who diagnosed her as suffering from an upper gastrointestinal bleed.

On December 14, 1994, Plaintiff sent Defendant a letter informing Defendant of her recent Hospitalization and her belief the Hospitalization was a direct and proximate result of the Accident. She advised Defendant she would be looking to it to pay the medical expenses for the Hospitalization “as well as the physicians care.” Defendant responded to Plaintiff’s letter on December 16, 1994, and asked her to provide them with all medical records from the Hospitalization and to provide it the name of the physician who diagnosed her current condition. Defendant further advised Plaintiff in the letter that section 627.736(4) of the Florida Statutes allowed Defendant to investigate whether medical bills received were reasonable or necessary and incurred as a result of a motor vehicle accident. Defendant took no further independent effort at that time to investigate Plaintiff’s claim for medical expenses for the Hospitalization and physicians’ care.

Plaintiff sent Defendant a second letter on January 25, 1996, inquiring as to the status of payment of three billing statements previously provided to Defendant. One of those statements was from Tulane University Hospital & Clinic in the amount of $1,076.53. This “past-due” statement was dated January 6, 1996, and informed Plaintiff that no payments or arrangements for payments of the amount due had been received. A telephone number for inquiries was provided. Additionally, the “past-due” statement informed Plaintiff that the “Tulane Medical Group will bill separately for the physician charges.” Defendant replied to Plaintiff’s letter on February 1, 1996, and advised her of the status of payment of the subject bills. Defendant reiterated in the letter its request for Plaintiff to provide them with her medical records and reminded Plaintiff that section 627.736(4) allowed it to investigate whether the medical bills received were reasonable, medically necessary, and incurred as a result of the Accident. Again, Defendant took no independent effort at that time to investigate Plaintiff’s claim for medical expenses for the Hospitalization and physicians’ care.

On April 29, 1997, Plaintiff wrote to Defendant a third time to request payment of the medical billing from Tulane University for her Hospitalization for an upper gastrointestinal bleed, which her physicians “diagnosed as being secondary to the consumption of Anvil (sic) and Toradal, both of which I was taking as a result of the March 10, 1993, accident.” Defendant responded to Plaintiff’s letter on June 16, 1997, and stated in its response that since it had not yet received any of the documents it had previously requested from her, Defendant had ordered records directly from the medical “providers.” No mention was made in the letter that the only records being requested from Tulane University were from the hospital and not the physicians.

Defendant wrote to Tulane University on June 16, 1997, enclosing an Authorization for Release of Medical Information signed by Plaintiff and requesting a certified copy of the complete medical record regarding Plaintiff. On August 25, 1997, Plaintiff, through her attorney, sent Defendant a demand letter requesting to be paid to her, among other things, the aggregate amount of $374.39 ($302.80 and interest of $71.59) for the Tulane Medical (Physicians).

After eight years of litigation, a three-day non-jury trial was held and concluded on September 14, 2005. The sole claim for unpaid PIP benefits at issue at trial was for medical services and treatment provided by the Tulane University Medical Group (“Tulane Physicians”) during Plaintiff’s Hospitalization (the “Claim”). At no time prior to trial did Defendant move to dismiss or abate the Claim as being unripe or having been prematurely filed.

The ultimate issues to be resolved at trial (collectively, the “Issues”) were

1) whether Defendant received reasonable proof of a covered loss and the amount of such loss for medical services provided to Plaintiff at Tulane University Medical Center by the Tulane Physicians (“Issue #1”); and

2) whether the medical services provided to Plaintiff at Tulane University Medical Center by the Tulane Physicians were causally related to Plaintiff’s Accident (“Issue #2”).

At the conclusion of all the evidence at trial, Plaintiff moved for a directed verdict. The Court, however, reserved ruling and allowed the case to proceed to the jury. The jury thereafter returned a verdict in Defendant’s favor on September 14, 2005, as to Issue #1 and failed to reach Issue #2.¹ At the conclusion of the trial, Plaintiff timely renewed her motion for a directed verdict and also moved, in the alternative, for a judgment notwithstanding the verdict and for a new trial.

Conclusions of Law

“A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., 784 So. 2d 500, 504 (Fla. 5th DCA 2001) quoting Cecile Resort Ltd. v. Hokanson, 729 So. 2d 446, 447 (Fla. 5th DCA 1999). In determining whether to grant a motion for directed verdict or a motion for judgment notwithstanding the verdict, a court shall draw all inferences of fact most strictly in favor of the non-moving party and must consider all evidence introduced at trial. Cooper Hotel Servs., Inc. v. MacFarland, 662 So. 2d 710, 712 (Fla. 2d DCA 1995). If any conflicts in the evidence exist or different reasonable inferences may be drawn from it, “then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.” Scott v. TPI Restaurants, Inc., 798 So. 2d 907, 909 (Fla. 5th DCA 2001). A “trial judge [however] is authorized to grant such motion[s] [where] there is no evidence or reasonable inferences to support the opposing position,” Cooper, 662 So. 2d at 712, quoting Stirling v. Sapp, 229 So. 2d 850, 852 (Fla. 1969).

Issue #1 — Receipt of Reasonable Proof and Written Notice of Loss and Amount Thereof.

In determining whether Plaintiff is entitled to the relief sought in her Motions, the Court must begin its analysis with a review of the controlling substantive law. As the Accident occurred in 1993, the parties’ rights and obligations regarding PIP benefits are controlled by the 1993 version of section 627.736, Florida Statutes. In particular, section 627.736(4) provides, in relevant part, that PIP benefits from an insurer shall be due and payable as the loss accrues upon the insurer’s receipt of “reasonable proof of such loss and the amount of expenses and loss incurred.” Florida Statutes § 627.736(4) (1993) (emphasis added). Regrettably, the statute fails to define “reasonable proof.” Section 627.736(4)(b) provides, in relevant part, that PIP benefits “shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.” Florida Statutes § 627.736(4)(b) (1993) (emphasis added).

Likewise controlling is the Florida Supreme Court’s decision in Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000). In Ivey, the court acknowledged that “[w]ithout a doubt, the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” 774 So. 2d at 683-84, quoting Government Employees Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987). It emphasized, in particular, that for over 25 years, Florida courts have consistently held that the “statutory language is clear and unambiguous . . . the burden is clearly on the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted ‘no fault’ insurance statute a ‘no pay’ plan — a result we are sure was not intended by the legislature.” Id. at 684 (citations omitted). Accordingly, section 627.736(4) requires the insurer of a motor vehicle to pursue some affirmative action within 30 days of receiving notice of the fact of a loss and the amount thereof to establish it is not responsible for payment. See Milian v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 249a (11th Cir. County Court November 30, 2004)(court concluded that Florida Supreme Court’s decision in United Automobile Ins. Co. v. Rodriquez, 808 So. 2d 82 (Fla. 2001), “does not alter the insurer’s statutory burden to authenticate the claim within thirty days nor does Rodriguez remove the insurer’s statutory obligation to obtain reasonable proof.”).

As to Issue #1, Plaintiff maintained that her January 25, 1997, letter to Defendant requesting the enclosed Tulane University Hospital bill be processed for payment satisfied the notice requirements of section 627.736(4) as the enclosed bill expressly provided, “[t]he Tulane Medical Group will bill separately for the physician charges.” Plaintiff further maintained that if her January 25th letter failed to provide Defendant “reasonable proof” and written notice of her loss and the amount thereof, then certainly her August 25, 1997, letter to Defendant, together with her prior correspondence, unquestionably did so. Plaintiff’s August 25th letter specifically requested payment from Defendant for the Tulane Medical (Physicians) in the amount of $302.80 and $71.59 in interest. In defense, Defendant argued that the correspondence from Plaintiff in no way satisfied the requirements of section 627.736(4) and that it had received no reasonable proof and written notice of Plaintiff’s loss and the amount thereof prior to the filing of the lawsuit, implying these items were necessary to satisfy the notice provisions of the statute. In support of its position, Defendant relied solely on the testimony of its litigation adjuster, Darren Murdoch, who confirmed Defendant never received a bill for the Tulane Physicians services or any medical records from Plaintiff.

Defendant’s contention that Plaintiff could have satisfied the notice requirements of section 627.736(4) by simply providing Defendant a bill for the Tulane Physicians’ services, however, is nothing more than a red herring. First, at no time prior to the filing of the lawsuit did Defendant ever request Plaintiff to provide it with a bill for the Tulane Physicians’ services. Defendant obviously was more concerned in obtaining Plaintiff’s medical records to ascertain whether the Hospitalization was related to the Accident than in obtaining a bill. If the Hospitalization was unrelated to the Accident, then Defendant would have no obligation under the PIP statute to pay the Claim. A bill would in no way prove to Defendant’s satisfaction that the Hospitalization was causally related to the Accident and would be irrelevent in any regard if the medical records revealed the Hospitalization was unrelated to the Accident.

Second, and more importantly, there was absolutely no requirement under the 1993 version of section 627.736(4) for Plaintiff or any medical service provider to furnish Defendant a “bill.” The statute merely required that Defendant receive “reasonable proof” and “written notice” of a covered loss and the amount thereof. Accordingly, Plaintiff had no statutory duty to provide Defendant her medical records as a condition precedent to Defendant’s duty to investigate, authenticate, or pay her Claim. Moreover, Florida courts have ruled that an insured fulfills her obligation to provide medical records “upon signing a waiver of confidentiality that allows the insurer to procure the records directly from the provider, who has the records, and who awaits payment.” Fortune Ins. Co. v. Pacheco, 695 So. 2d 394, 396 (Fla. 3d DCA 1997). Specifically, in Fortune Ins. Co. v. Pacheco, 695 So. 2d 394, the court held that “[a]lthough it is entirely possible for the insurer to require supporting medical records, the insurer cannot require the claimant to furnish those records before the thirty day period begins to run.” Id. at 396.

It is undisputed Plaintiff timely completed and provided Defendant an authorization allowing it to obtain her medical records, and Plaintiff in no way hindered or prevented Defendant from obtaining the records directly from the hospital and Tulane Physicians. However, instead of seeking to obtain the medical records itself, Defendant insisted Plaintiff provide them. The fact is, Defendant had the ability and every opportunity to independently obtain the medical records and any bill it claimed it needed directly from the hospital and the physicians. Indeed, Defendant demonstrated its ability to do so on June 16, 1997, prior to this case being filed, by forwarding Plaintiff’s April 11, 1993, executed authorization to Tulane University. By arguing Plaintiff somehow failed to comply with the statute’s requirements by failing to provide the medical records, or even a bill, Defendant is attempting to impermissibly shift from Defendant to Plaintiff the burden to authenticate the Claim and obtain reasonable proof it is not responsible for the payment of the Claim. Defendant’s attempt to evade its statutory duty by insisting that Plaintiff obtain and provide it with the medical records from the Hospitalization is contrary to the well-established case law and statutory interpretation of section 627.736(4)(b).

In addition, Defendant’s contention that Plaintiff’s Claim is barred to the extent Plaintiff’s August 25, 1997, letter constitutes the reasonable proof and written notice to Defendant pursuant to section 627.736(4) likewise lacks merit. At trial, Defendant argued that Plaintiff’s cause of action on the Claim based on her August 25th letter was unripe or premature at the time she filed her complaint on July 16, 1997, because the Claim was not yet overdue as the 30 day period for Defendant to pay the Claim had not yet expired. As the Claim was not yet ripe or actionable, Plaintiff was barred from seeking any relief from Defendant for its nonpayment of the Claim. This argument is flawed for the reasons articulated below.

To prevent Plaintiff’s claim for PIP benefits from becoming overdue, Defendant had 30 days from receipt of reasonable proof and written notice of the Claim to pay it or obtain reasonable proof it was not responsible for its payment pursuant to section 627.736(4). Defendant likewise had an obligation on August 25, 1997, pursuant to Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000), and its progeny to authenticate and investigate the Claim and the amount due to the Tulane Physicians regardless of the pending nature of the case. The Court is unaware of any reported Florida decision tolling the time for an insurer to authenticate and investigate a claim under section 627.736, Florida Statutes. See Crooks v. State Farm Mut. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995); Martinez v. Fortune Ins. Co., 684 So. 2d 201 (Fla. 4th DCA 1996). Plaintiff’s cause of action on her Claim for PIP benefits in connection with the Tulane Physicians treatment therefore matured, and these benefits subsequently became “overdue,” 30 days after Defendant’s receipt of Plaintiff’s August 25th demand letter or on September 29, 1997, at the latest (if five days are added for mail).

Thus, in this case, the premature element of Plaintiff’s cause of action on her Claim based on the August 25th letter (i.e., its “overdue” status) was cured by the mere passage of time — the expiration of the 30 day period for Defendant to authenticate and pay the Claim.² “In cases where the premature element of an action is curable simply by the passage of time, Florida courts have generally disapproved dismissal of an action. Instead the favored disposition is abatement of the action until the cause matures.” Shuck v. Bank of America, N.A., 862 So. 2d 20, 24 (Fla. 2d DCA 2003), citing Thomas v. Suwannee County, 734 So. 2d 492, 497 (Fla. 1st DCA 1999), Interlatin Supply, Inc. v. S & M Farm Supply, Inc., 654 So. 2d 254, 255 (Fla. 3d DCA 1995); Angrand v. Fox, 552 So. 2d 1113, 1115 (Fla. 3d DCA 1989). Accordingly, Defendant’s recourse against Plaintiff for an unripe or prematurely filed claim would have been either to seek the dismissal, without prejudice, of the Claim or, alternatively, to seek a stay or abatement of the Claim until the period necessary for its maturation under the law had expired. See Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003); Thomas v. Suwanee County, 734 So. 2d 492 (Fla. 1st DCA 1999); Angrand v. Fox, 552 So. 2d 1113 (Fla. 3d DCA 1989). Defendant timely failed to pursue either course of relief and thus, is now estopped or deemed to have waived its right to defend against the Claim on these grounds. As the passage of time cured the premature nature of the Claim, and Defendant failed to timely move to dismiss or abate the action, Plaintiff’s Claim based on the August 25th letter is mature and actionable despite Defendant’s receipt of the letter after Plaintiff’s case was filed. See Angrand v. Fox, 552 So. 2d 1113 (Fla. 3d DCA 1984); citing 1 Fla. Jur. 2d Actions § 64 at 281 (1977) (“Another ground for abatement of an action is that it is prematurely commenced, that is, that it has been commenced before the accrual of the cause of action, as where, for example, the action is commenced on an insurance policy before the expiration of the time allowed by the policy to the insurance company to exercise its option to repair the damage or pay the loss.”)

Issue #2 — Plaintiff’s Hospitalization Was Causally Related to the Accident.

As to Issue #2, Plaintiff introduced the testimony of two physicians to prove her Hospitalization was reasonable, necessary, and causally related to the Accident. Dr. Martinez, Plaintiff’s treating physician in connection with the Accident, testified it was his opinion based on reasonable medical probability that the upper gastrointestinal bleeding that resulted in Plaintiff’s Hospitalization was caused by Plaintiff’s use of aspirin and other non-steroidals in connection with her Accident. On cross examination, Dr. Martinez admitted he was not an expert in internal medicine and gastrointestinal disorders. He testified on redirect, however, that he was comfortable giving his opinion as to the causation of Plaintiff’s gastrointestinal bleed because he is familiar with the side effects caused by the pain medications he prescribes for or recommends to his patients.

Dr. Louis Lambiase, Plaintiff’s treating physician in connection with her Hospitalization, testified that the most common cause of gastrointestinal bleeding is from the ingestment of non-steroidals and anti-inflammatory medicines such as aspirin and that more likely than not the source of Plaintiff’s gastrointestinal bleeding was from Plaintiff’s use of non-steroidals. He also testified he had no independent recollection of having treated Plaintiff and was relying almost entirely on his review of Plaintiff’s file or a portion thereof that had been delivered to him for review. On cross examination, Dr. Lambiase testified a progress report that had been prepared in connection with Plaintiff’s Hospitalization reflected he was uncertain of the etiology or cause of Plaintiff’s condition, and he conceded that non-steroidal medications are not the only cause for an upper gastrointestinal bleed. Nevertheless, Dr. Lambiase never waiver from his opinion that the more likely source of Plaintiff’s upper gastrointestinal bleed was the taking of non-steroidals.

Both of Plaintiff’s medical experts testified credibly that Plaintiff’s use of aspirin and other non-steroidals was the likely cause of the upper gastrointestinal bleed resulting in her Hospitalization, and Plaintiff testified credibly that she consumed the aspirin and other non-steroidals on almost a daily basis following her Accident. Plaintiff accordingly introduced substantial, competent evidence to prove the cause of her Hospitalization (i.e., the gastrointestinal bleed) was reasonable, necessary, and causally related to the Accident.

Having satisfied her burden as required under the case of Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998), the burden shifted to Defendant to present some countervailing evidence or to severely impeach Plaintiff’s medical experts. See Williamson v. Superior Ins. Co., 746 So. 2d 483 (Fla. 2d DCA 1999); Holmes v. State Farm Mutual Automobile Ins. Co., 624 So. 2d 824 (Fla. 2d DCA 1993). Defendant, however, failed to come forward with its own expert in rebuttal and presented no contradictory, medical testimony by any physician. Although Defendant cross examined Plaintiff’s treating physicians extensively, it failed to substantially discredit or severely impeach their testimony regarding the relatedness of the gastrointestinal bleeding to Plaintiff’s use of aspirin and other non-steroidals, and it presented absolutely no evidence to establish Plaintiff’s use of non-steroidals was the result of anything other than the Accident. See Evans v. Montenegro, 728 So. 2d 270 (Fla. 3d DCA), rev. denied, 741 So. 2d 1135 (Fla. 1999) (court rejected Defendant’s argument that, although there was no direct evidence contradicting plaintiff’s experts, “the jury was free to disregard the testimony. . .”). The evidence introduced by Plaintiff, on the other hand, was convincing and uncontroverted.

The only evidence introduced by Defendant at trial to contradict Plaintiff’s was a medical record by Dr. Bruce Edgerton. Dr. Edgerton is a local gastroenterologist who examined Plaintiff in January 1995 following her Hospitalization.³ Plaintiff apparently had been referred to Dr. Edgerton by Dr. Martinez. The purpose of his examination was not to make a diagnosis of what caused the gastrointestinal bleed, but rather, to follow up on her Hospitalization and give Plaintiff subsequent treatment. The medical record introduced by Defendant merely reflected Dr. Edgerton’s opinion that Plaintiff’s use of aspirin “may” have caused the gastrointestinal bleeding. This evidence in no way created a conflict in the evidence nor could different reasonable inferences be drawn from it.

Plaintiff additionally is entitled to the entry of a judgment against Defendant as to Issue #2 because Defendant failed to comply with the requirements of section 627.736(7)(a). Section 627.736(7)(a), Florida Statutes, provides, in relevant part, that

an insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a 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.

Florida Statutes § 627.736(7)(a) (1993).

Defendant argued it was not liable to Plaintiff on the Claim because the Hospitalization was unrelated to the Accident. As Defendant was not contesting the reasonableness of the charge, but rather, the relatedness of the Hospitalization to the Accident (and hence, the reasonableness, relatedness, and necessity of the treatment), Defendant was required to obtain a report from a physician licensed under the same statute as the treating physicians before it could challenge the reasonableness, relatedness, or necessity of services and treatment rendered. See United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 90 fn.14 (Fla. 2001, J. Lewis, dissenting).

In United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998), the Third District Court of Appeal in affirming the trial court’s order directing verdict in favor of the insured held that United Auto “was required to first obtain a physician’s report before refusing to pay further medical bills.” United Automobile Ins. Co. v. Viles, 726 So. 2d 320, 321. The Viles court further held that section 627.736(7)(a) “plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.” Id. at 321. Subsequent courts have recognized the continued vitality of Viles in light of the Florida Supreme Court’s opinion in United Automobile Ins. Co. v. Rodriquez, 808 So. 2d 82 (Fla. 2001). See, e.g., West Gables Open MRI, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 870 (11th Cir. County Court June 16, 2005) (court found Viles to be controlling); Active Spine Centers, LLC v. United Automobile Ins. Co., 10 Fla. L. Weekly Supp. 1024 (11th Cir. County Court October 21, 2003) (court found Viles was not “overruled” by Rodriquez); Milian v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 249a (11th Cir. County Court November 23, 2004) (court ruled the narrow holding in Rodriguez stands only for the proposition that the insurer is not barred from contesting a claim if the insurer fails to obtain reasonable proof within the statutory time period). Indeed, Justice Pariente’s dissenting opinion discusses in detail the difference between section 627.736(7)(a) and related statutory enactments concerning the procedural aspects to a challenge by the insurer to the reasonableness, relatedness, or necessity of the services or treatment rendered. Rodriquez, 808 So. 2d at 82; see Active Spine Centers, LLC v. United Automobile Ins. Co., 10 Fla. L. Weekly Supp. 1024 (11th Cir. County Court October 21, 2003).

In view of the foregoing, Plaintiff met her burden in establishing a prima facie case that Defendant received “reasonable proof” and written notice of a covered loss and the amount thereof and that the subject Hospitalization was reasonable, necessary, and causally related to the Accident. Defendant presented no evidence whatsoever that it obtained a report from a physician licensed under the same licensing chapters as to Drs. Martinez and Lambiase, nor was any peer review nor testimony of any peer review doctor introduced. As Defendant failed to comply with the statute’s requirements, Defendant is barred by section 627.736(7)(a) from denying payment for the Tulane Physicians charge at issue in this case. See West Gables Open MRI, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 870 (11th Cir. County Court June 10, 2005); Active Spine Centers, LLC v. United Automobile Ins. Co., 10 Fla. L. Weekly Supp. 1024 (11th Cir. County Court October 21, 2003).

Conclusion

Having considered all the evidence adduced at trial and indulging all inferences of fact most strictly in favor of Defendant, and having considered applicable Florida law, the Court concludes there is no evidence or reasonable inferences in the instant case to support the jury’s verdict in favor of Defendant on Issue #1. In the Court’s view, Plaintiff’s January 25, 1996, and August 25, 1997, letters conclusively established Defendant’s receipt of “reasonable proof” and written notice of a covered loss and the amount thereof as required by section 627.736(4). The jury’s verdict for Defendant therefore is against the manifest weight of evidence and contrary to applicable Florida law. Accordingly, this Court now grants the previously reserved motion for directed verdict by entering a judgment for Plaintiff notwithstanding the verdict as to Issue #1.

The Court likewise concludes based on its review of all the evidence adduced at trial, indulging all inferences of fact most strictly in favor of Defendant, and its review of applicable Florida law, that there is no evidence or reasonable inferences to support a jury verdict in favor of Defendant as to Issue #2. The Court having previously reserved ruling on Plaintiff’s motion for directed verdict as to Issue #2, now grants the motion and directs verdict in favor of Plaintiff as to Issue #2.

Finally, the Court concludes that Plaintiff is entitled to an award of reasonable attorneys’ fees and costs pursuant to sections 627.736(8) and 627.428 as the prevailing party on her Claim.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Motion for Directed Verdict or, alternatively, Motion for Judgment Notwithstanding the Jury Verdict as to Issue #1 is GRANTED.

2. Plaintiff’s Motion for Directed Verdict as to Issue #2 is GRANTED.

3. Plaintiff’s Motion for New Trial as to both Issues is DENIED.

4. The Court reserves jurisdiction to enter a final judgment for Plaintiff for damages, for reasonable attorneys’ fees and costs, and for such other and further relief as may be necessary, just, or appropriate.

__________________

¹The verdict form submitted to the jury instructed the parties to answer the first question regarding Defendant’s receipt of reasonable proof of a covered loss and the amount thereof and if answered in the negative, to proceed no further. Accordingly, the jury never reached Issue #2 as to whether the Hospitalization was causally related to the Accident.

²To the extent Defendant claims this action is of a type that the mere passage of time is insufficient to cure the premature element of the action because one of its essential elements is contingent upon the occurrence of an event that may not occur i.e., like Defendant’s payment of the claim, the court finds this argument unpersuasive as the fact is, Defendant never paid the Claim.

³Dr. Edgerton’s deposition had been filed in support of Plaintiff’s motion for summary judgment, but neither Plaintiff nor Defendant introduced the deposition as evidence at trial.