13 Fla. L. Weekly Supp. 558a
Insurance — Personal injury protection — Coverage — Medical expenses — Failure to pay or obtain reasonable proof within 30 days — Error to enter summary judgment in favor of medical provider where penalty for not paying valid claim or obtaining reasonable proof that claim is not valid within 30-day authentication period is imposition of additional interest and attorney’s fees, not elimination of insurer’s right to contest claim — Reasonable charges — No merit to argument that insurer’s responses to request for admissions establish that charges are reasonable — Statements in admissions relating to payments made to other providers in same zip code as provider and under similar CPT codes do not require conclusion that disputed charges are reasonable — Further, insurer is entitled to rely on computer-based program to contest reasonableness of charges and have jury weigh both parties’ proof
PROGRESSIVE EXPRESS INS. CO., Appellant, vs. FRANCISCO M. GOMEZ, M.D., P.A., (a/a/o Billy Wood), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 05-5190, Division X. L.C. Case No. 03-12286-SC. February 23, 2006. Review of a final order of the County Ct., Hillsborough County. Counsel: Michael C. Clarke, Kubicki Draper, Tampa, for Appellant. V. Rand Saltsgaver, Orlando, for Appellee. Timothy A. Patrick, Tampa.
(JAMES M. BARTON, II, J.) In this appeal, Appellant Progressive Express Insurance Company (Progressive) challenges a final summary judgment entered in favor of Appellee Francisco M. Gomez, M.D., P.A. (Gomez).* [Editor’s note: Partial summary judgment in this case published at 12 Fla. L. Weekly Supp. 790a.] Finding that there are disputed issues of material fact, we reverse for a trial on the merits.
Gomez, assignee of Progressive’s insured Billy Wood, filed this lawsuit seeking payment of personal injury protection (PIP) benefits. Responding to the amended complaint, Progressive denied any failure on its part to make payment of a covered loss and asserted as an affirmative defense that Gomez’s charges were excessive or unreasonable. Specifically, Progressive claimed in its answer that Gomez billed his charges based on incorrect or inappropriate CPT codes.
Both parties moved for summary judgment. In granting Gomez’s motion, the trial court concluded that Progressive violated F.S. §627.736(4)(b) by failing to obtain reasonable proof within the statutory thirty day authentication period.
In ruling on a motion for summary judgment, the trial court must draw every possible inference in favor of the non-moving party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). A motion for summary judgment should not be granted unless the record demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Athans v. Soble, 553 So. 2d 1361 (Fla. 2d DCA 1989). If the record raises even the slightest doubt that a genuine issue of material fact might exist, that doubt must be resolved against the moving party, and the motion for summary judgment must be denied. Hervey v. Alfonso, 650 So. 2d 644 (Fla. 1995). In reviewing final summary judgment, the standard of review is de novo. McKenna v. Camino Real Vill. Ass’n, Inc., 877 So. 2d 900 (Fla. 4th DC 2004).
In a case where an insured seeks recovery from an insurer based on a refusal to pay for medical services, the insured bears the burden of establishing that the charges are reasonable in amount and medically necessary. State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002). Whether a given medical service is necessary or a given expense is reasonable are questions of fact for the jury. Derius v. Allstate Indem. Co., 723 So. 2d 271 (Fla. 4th DCA 1998).
Gomez relies upon two matters contained in the record to support its motion for partial summary judgment. First, Gomez asserts that because Progressive’s adjuster admitted that there was no reasonable proof contained in Progressive’s file during the statutory thirty day authentication period established by F.S. §627.736(4)(b), Progressive is not allowed to contest the reasonableness of Gomez’s charges in this lawsuit. Gomez’s position on this point is without merit. The penalty for not paying a valid claim for PIP benefits within thirty days of submission is the additional imposition of interest and attorney’s fees. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001). Failure of an insurer to pay a PIP claim within thirty days of submission of the claim does not eliminate the insurer’s right to contest the claim. January v. State Farm Mut. Ins. Co., 838 So. 2d 604 (Fla. 5th DCA 2003).
Second, Gomez asserts that Progressive’s failure to deny his second request for admissions establishes that the charges were reasonable. Gomez’s position on this point is also without merit. Even assuming that the matters contained in Gomez’s request should be deemed admitted, the specific items of fact described therein do not require a conclusion that the charges in dispute are reasonable. The five enumerated statements of fact contained in the admissions request relate merely to payments made to other health care providers in the same zip code as Gomez and under similar CPT codes.
Even more importantly, Progressive is entitled to rely on its computer-based program in contesting the reasonableness of Gomez’s charges. State Farm Mut. Auto. Ins. Co. v. Sestile, supra. At trial, the jury will weigh proof submitted by both parties on the issue of reasonableness in determining this disputed issue of material fact.
Based on the foregoing analysis, the final summary judgment is reversed, and the cause is remanded for a trial on the merits. The Court further denies Gomez’s motion for attorney’s fees and denies without prejudice Progressive’s motion for attorney’s fees based on a proposal for settlement. On remand, the trial court after entry of final judgment in this cause will determine if Progressive is entitled to its appellate attorney’s fees based on the result obtained and the legal sufficiency of Progressive’s proposal for settlement. (ISOM and ARNOLD, JJ., concur.)
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*Progressive has voluntarily withdrawn points II and III contained in its initial brief which sought reversal based on the trial court’s denial of its motion for summary judgment.
