13 Fla. L. Weekly Supp. 1152a
Insurance — Personal injury protection — No abuse of discretion in denying insurer’s ore tenus motion for extension of time to file affidavit supporting peer review physician’s report in opposition to medical provider’s motion for summary judgment where motion for summary judgment was noticed six weeks before motion hearing, and insurer offered no explanation for failure to timely file affidavit — Even if timely filed and considered at motion hearing, affidavit would not have affected court’s decision to enter summary judgment in favor of provider where insured’s benefits were withdrawn by making of reduced payment prior to physician’s report having been obtained — Section 627.736(7)(a) requires written report as condition precedent to withdrawing, denying or reducing medical treatment — Argument that peer review report was not submitted to satisfy statutory condition precedent, but to create genuine issue of material fact as to charges, is inconsistent with report, which states that evaluation was conducted to determine which services were medically necessary, reasonable and related to accident and contained physician’s attestation that he met requirements of section 627.736(7)
PROGRESSIVE EXPRESS INSURANCE CO., Appellant, vs. QUALITY DIAGNOSTICS, INC., a/a/o/ DORA BATISTA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-052. L.T. No. 03-7374 SP 25. March 28, 2006. An appeal from the County Court in and for Miami-Dade County, Teretha Lundy Thomas, J. Counsel: Nancy Gregoire, for Appellant. Jose R. Iglesia, Jose R. Iglesia & Associates, Coral Gables, for Appellee.
(Before GERALD D. HUBBART, VICTORIA PLATZER and GILL S. FREEMAN, JJ.)
(VICTORIA PLATZER, J.) In May 1999, Dora Batista (“the insured”) was involved in an automobile accident and subsequently obtained treatment from Appellee, Quality Diagnostics, Inc. (“the provider”), to whom the insured assigned her rights under the policy. The provider submitted bills to Appellant, Progressive Express Insurance Company, (“the insurer”) in July 1999 in the amount of $2,700.00 . The insurer, in August 1999, paid the reduced amount of $1,470.00 (plus interest of $2.83 in recognition that the payment was made outside the 30 day period required pursuant to Florida Statute §627.736(4)(a)).
The provider filed suit on June 24, 2004 for the balance of the amount due. Subsequent to the suit having been filed and subsequent to the provider’s motion for summary judgment having been served, the insurer obtained a report (“peer review”) from Dr. Rubenstein stating that the services provided were not reasonable, related or necessary. The report was prepared on March 17, 2004 and filed for record on September 24, 2004, without an affidavit attached.
At the hearing on the insured’s motion for summary judgment, heard November 8, 2004, the insurer moved for an extension of time to file an affidavit supporting Dr. Rubenstein’s report. The court denied the motion. The court, in a separate ruling, granted an extension of time to the provider to file an affidavit on the insurer’s motion for summary judgment which was being heard the same day.
The dissent contends that the denial of the motion for extension of time was an abuse of discretion by the trial court, requiring reversal. The record indicates that the motion for summary judgment was noticed mid-September 2004, over 6 weeks before the November 8th hearing. At the hearing, the insurer moved ore tenus for additional time to file the physician’s affidavit in support of the report. There was no explanation for the affidavit not having been timely filed and the insurer offered none. With all due respect to the dissent’s view, we find that it was clearly within the court’s sound discretion to deny the request for additional time to file the affidavit.
More importantly, however, whether or not the trial court allowed the insurer additional time to file an affidavit in support of its peer review becomes irrelevant in light of the clear statutory dictates governing this case. Even if timely filed and considered at the time of the summary judgment hearing, the affidavit would not have affected the outcome of the court’s decision because the insured’s benefits were “withdrawn” (in this case reduced) prior to the physician’s report having been obtained.
This case hinges on the interpretation and application of Florida Statute §627.736(7)(a):
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 asthe treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related or necessary.
In United Auto Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) the appellate court interpreted §627.736(7)(a) to apply to any reduction in benefits and further held that a physician’s report is required prior to such reduction:
In any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, it [is] a condition precedent pursuant to Section 627.736(7)(a), Florida Statutes, that an insurer obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related or necessary in order for the insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, necessity or relationship.
Id. at321.
The insurer argues that Allstate Indem. Co. v. Derius, 773 So. 2d 1190, 1191 (Fla. 4th DCA 2000) applies in holding that §627.736(7)(a), Florida Statutes (1999), does not require a written report as a condition precedent to reducing payment of a bill for treatment on the grounds of reasonableness, necessity or relationship. The Derius opinion attempts to distinguish Viles by suggesting that Viles deals with withdrawal of all payments based upon fraud alone, and does not address the issue of reasonable, related or necessary. We respectfully disagree with the Derius court’s interpretation of the Viles decision. A plain reading of Viles indicates that the reduction of benefits was based upon fraud and “reasonable, related or necessary.” Id., Viles, at 321. The Viles case clearly stands for the proposition that §627.736(7)(a) applies in instances where the insurer either“withdraws, denies or reduces”medical treatment.
The insurer has argued that Dr. Rubenstein’s “peer review” was not submitted to satisfy the requirements of §627.736(7). According to the insurer, the report was submitted to create a genuine issue of material fact regarding the charges. However, this position is inconsistent with the physician’s report. Dr. Rubenstein’s report specifically states that the evaluation was conducted to determine which services were medically necessary, reasonable and related to the injury and contains the doctor’s attestation that he meets the requirements of §627.736(7).
Although the trial court based its decision on an analysis under §627.736(4)(a) and the 30 day requirement, an analysis under §627.736(7)(a) would lead to the same result. “The ‘tipsy coachman’ doctrine allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ as long as there is any basis which would support the judgment in the record.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002), quoting Dade County School Board v. WQBA, 731 So. 2d 638, 645 (Fla. 1999). Therefore, under the “tipsy coachman” doctrine, the trial court’s denial of the motion for extension of time is affirmed. However, this cause is remanded to the trial court to determine whether the costs awarded were in fact duplicative, as argued by the insurer and not disputed by the provider. (FREEMAN, J., concurs.)
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(HUBBART, J., dissenting.)
I respectfully dissent from the majority opinion for the following reasons.
In May of 1999, Dora Batista, Appellee’s assignee and Appellant’s insured, was injured in an automobile accident. She was treated by Appellee and assigned her benefits under the policy she had with Appellant to the Appellee. Appellee presented the bills for Ms. Batista’s treatment in the amount of $2,700.00 to the Appellant for payment on July 2, 1999. After thirty days elapsed, on August 6, 1999, Appellant paid $1,470.00 plus $2.83 in interest to the Appellee. Appellee filed suit June 6, 2003 for the full amount of the bills.
Appellee then filed a motion for summary judgment on June 24, 2004 on the question of whether the treatment and bills were reasonable and related to the auto accident and medically necessary. It was supported by affidavits of two physicians. In response, on September 24, 2004, the Appellee filed an unsworn peer review of a physician which contradicted the allegations of the motion and the supporting affidavits. The peer review had been done in March of 2004.
At the hearing on the motion, counsel for the Appellant pointed out that the motion was deficient in that there was no affidavit from the insured assigning her benefits to the Appellee. Counsel for the Appellee then asked the Court for ten days to file an affidavit of assignment. The Court granted the request with no objection from Appellant’s counsel. When Appellee’s counsel pointed out that the peer review was unsworn, Appellant’s counsel asked the Court for ten days’ leave to resubmit it in affidavit form. The Court denied this because the report was filed too late. The Court then granted the motion for summary judgment because there was no contradictory affidavit filed by the Appellant and even if the peer review had been in affidavit form, it was filed too late.
The court’s ruling on the timeliness question was based on a reading of Sections 627.736(4)(b) and 627.736(7)(a), Florida Statutes, which state in pertinent part:
Personal injury protection 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 of 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. . . .
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.
The Appellee’s position, adopted by the trial court, is that these statutes require that when an insurance company is presented with medical bills for payment from its insured under a personal injury protection policy, the company has thirty days in which to pay the full amount or to furnish proof, such as a doctor’s report or peer review to the effect that the bills are for treatment not reasonable, related or necessary to any injuries sustained in any covered auto accident. Since the peer review was done long after the bills were presented to the Appellant, it was too late and the Appellant could not contest Appellee’s claim.
While I share the trial court’s concern that the peer review was not done until almost five years after the bills were first presented for payment, the failure to do so within thirty days does not defeat the Appellant’s right to contest the claim. In United Automobile Insurance Company v. Rodriguez, 808 So.2d 82, 87 (Fla. 2001), the Florida Supreme Court stated:
[T]he plain language of section 627.736 provides that an insurer is subject to specific penalties for an “overdue” payment: ten percent interest and attorneys’ fees. Nothing in the statute provides that once a payment becomes overdue, the insurer is forever barred from contesting the claim.
Thus, despite the fact that the peer review was submitted long after the statutory thirty days had elapsed, it could still be used as a basis for defending against the claim and the motion for summary judgment.
In a sense, the trial court’s ruling on the motion was correct, even if based on an incorrect understanding of the law. The peer review was not presented to the trial court by the Appellee in affidavit form. In its unsworn state, it could not effectively contradict the Appellee’s statement of material facts in the motion for summary judgment. But then the motion itself was technically deficient in that it was unaccompanied by an assignment of benefits from Dora Batista. The trial court could have denied the motion on that basis. But in the exercise of its sound discretion, it allowed the Appellee to supplement its motion with a properly executed assignment of benefits at a later date.
Having done so, it was an abuse of discretion of the trial court not to grant the Appellant similar relief by allowing it to resubmit the peer review in proper affidavit form. The majority correctly points out that the Appellant had ample time to present the peer review as an affidavit. But the Appellee had ample time for file the assignment of benefits. Once the trial court granted the Appellee additional time to file the assignment, it became an abuse of discretion not to similarly grant the Appellant’s request. This is particularly so, since, if the peer review had been submitted in such form at the time of the hearing, denial of the summary judgment motion would have been compelled under Rodriguez, supra.
For the above stated reasons, I would reverse and remand the final summary judgment and order awarding costs and fees.
