13 Fla. L. Weekly Supp. 826a
Insurance — Personal injury protection — Notice of claim — Where medical provider wrote “See Attached” on lines of standard disclosure and acknowledgment form provided for description of treatment rendered and attached documents describing treatment, form substantially complies with standard form and statute — Independent medical examination — Failure to attend — Insurer cannot use opinion of medical doctor to suspend benefits where all treatment is chiropractic, and insurer failed to notify insured of intent to suspend benefits as result of non-attendance at IME — Insurer cannot use insured’s nonattendance at IME with chiropractor to suspend benefits where insured’s attorney requested that unilaterally scheduled IME be reset at mutually convenient time, but insurer never rescheduled IME, and insurer failed to notify insured of intent to suspend benefits as result of non-attendance at IME — Examination under oath — Insured was not required to attend EUO where insurer failed to provide insured with requested copy of insurance policy on which EUO defense is premised — Further, where insurer gave two alternative dates for EUO, only date insured can contend insured did not appear at EUO is second date and, since that date fell after effective date of benefits cutoff, insured’s duties under policy had been discharged and insured had no duty to attend EUO — Summary judgment — Peer review — Timeliness — Insurer is precluded from relying on untimely filed peer review in opposition to summary judgment — Where insurer had no evidence other than untimely peer review to dispute provider’s contention that bills were reasonable, related and necessary, summary judgment is granted in favor of provider
SOUTH MIAMI HEALTH CENTER a/a/o LAZARO ALCARRAGA, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-0006 CC 25. May 31, 2006. Andrew S. Hague, Judge. Counsel: Chastity Perez.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT
Plaintiff’s Motion for Summary Final Judgment was heard in chambers on May 11, 2006. The court having heard argument of counsel and having otherwise being fully advised in the premises, it is
ORDERED AND ADJUDGED:
1) Plaintiff’s Motion for Summary Final Judgment is GRANTED. After reviewing the court file, including Plaintiff’s and Defendant’s Motion for Summary Final Judgment and Plaintiff’s Memorandum of Law in Support of Motion for Summary Final Judgment, deposition transcripts, pleadings and filed affidavits, and hearing the argument of counsel, there appears not to exist any genuine issues of material fact, thereby entitling the Plaintiff to a Summary Final Judgment as a matter of law.
2) Plaintiff brought of cause of action against Defendant alleging violation of FS 627.736 and breach of contract seeking to enforce payment of PIP benefits arising out of injuries sustained resulting from an automobile accident that occurred on July 13, 2004.
3) Plaintiff treated Lazaro Alcarraga for injuries sustained as a result of the above referenced accident between July 20, 2004 and November 2, 2004 and incurred medical bills amounting to $9,535.00.
4) Plaintiff timely submitted its claims for PIP benefits to Defendant.
5) Lazaro Alcarraga was involved in the accident subject to this case and suffered injuries as a result thereof. The accident in this case occurred during the coverage period of Defendant’s policy. Defendant admitted that there was coverage in this case.
6) Plaintiff’s affidavit of its treating physician established that Plaintiff’s medical bills were within reasonable degree of chiropractic probability, reasonable, necessary and related to the accident subject to this case. Plaintiff’s affidavit of its treating physician established that Plaintiff’s medical bills were usual normal and customary for like chiropractic treatment in the Miami-Dade County area.
7) Defendant plead three affirmative defenses in this case. Defendant’s Affirmative Defenses are as follows:
1) Defendant states that pursuant to Florida Statute 627.736(5)(e), the Defendant has not been furnished with written notice of the fact of a covered loss due to noncompliance with the statute as the provider did not properly submit to the insurer properly executed disclosure and acknowledgment form per the statute as such bills are not due and owing.
2) Defendant states that Plaintiff/Claimant failed to perform all of the conditions precedent to entitle Plaintiff/Claimant to recovery in that Plaintiff/Claimant failed to attend scheduled sworn statement.
3) Defendant states that Claimant, Lazaro Alcarraga, has unreasonably failed and/or refused to attend independent medical examination(s) scheduled by Defendant, or on Defendant’s behalf. As such, Assignor/Plaintiff has failed to comply with conditions precedent and Defendant is not obligated to pay for PIP benefits due and payable subsequent to Assignor’s non-attendance. Assignor’s failure and/or refusal also constitutes a violation of Florida Statute 627.736.
8) The Defendant contends that the Plaintiff failed to complete the Standard Disclosure and Acknowledgment Form that was executed on July 20, 2004 and as a result thereof, the Plaintiff had not properly submitted any of its claims for PIP benefits pursuant to FS 627.736. The Defendant asserted that line 1 of Plaintiff’s Standard Disclosure and Acknowledgment Form was incomplete thereby invalidating the entire form. The Defendant contends that the Plaintiff’s writing “See Attached” on line 1 of the Standard Disclosure and Acknowledgment Form was improper as the Plaintiff was required to provide an extensive list of all of the treatment and billing that was provided to Lazaro Alcarraga on July 20, 2004. Defendant then asserts that as a result of Plaintiff’s presenting what it believes to be an invalid Disclosure and Acknowledgment Form, Defendant is not responsible for paying any PIP benefits in this case. Here, it was undisputed that the Plaintiff provided to Defendant with a Standard Disclosure and Acknowledgment Form provided by the Office of Insurance Regulation. The Standard Disclosure and Acknowledgment Form was executed on July 20, 2004, Lazaro Alcarraga’s first date of treatment. Line 1 of the Disclosure and Acknowledgment Form stated the following:
The services set forth below were actually rendered. This means that the services have already been provided.
Immediately below the above referenced paragraph, are two blank lines. The Plaintiff typed “See Attached” and attached to the Standard Disclosure and Acknowledgment Form are the medical reports and health insurance claim forms regarding the Plaintiff’s first claim for PIP benefits for days of service between July 20, 2004 and September 16, 2004. Defendant does not dispute that Plaintiff’s first claim for PIP benefits attached the Plaintiff’s Initial Report that set forth the Plaintiff’s plan future treatment, Lazaro Alcarraga’s present complaints of pain and present of chiropractic findings, the daily chiropractic records showing all of the treatment and therapy rendered on July 20, 2004, a diagnosis sheet showing Lazaro Alcarraga’s diagnosis dated July 20, 2004, a comparative muscle test report dated July 20, 2004, x-ray reports for July 20, 2004 and health insurance claim forms showing the CPT codes and charges for July 20, 2004. Additionally, Plaintiff’s summary judgment motion provided an affidavit of George Wittenmeyer, DC wherein he testified that Lazaro Alcarraga was explained the medical treatment and medical billing provided to her as required by the Standard Disclosure and Acknowledgment Form. Dr. Wittenmeyer’s, affidavit further stated that the Standard Disclosure and Acknowledgment Form did not contain ample space to provide an extensive list of all the treatment that was rendered in explains the Lazaro Alcarraga on July 20, 2004 so Plaintiff typed in “See Attached” and attached the medical reports and medical bills in the manner described above. Dr. Wittenmeyer’s affidavit was undisputed by the Defendant.
9) The court finds that Plaintiff’s Standard Disclosure and Acknowledgment Form substantially complies with the form promulgated by the Office of Insurance Regulation, Bureau of Property and Casually Forms and Rates and the strictures of FS 627.736(5)(e). Accordingly, Defendant’s affirmative defense claiming that Plaintiff’s Standard Disclosure and Acknowledgment Form is invalid cannot be used to preclude Defendant from paying PIP benefits to Plaintiff in this case.
10) Defendant’s Second Affirmative Defense claims that Defendant is able to suspend PIP benefits as a result of Lazaro Alcarraga’s alleged unreasonable refusal to attend a PIP compulsory insurance medical examination. In order to suspend PIP benefits under 627.736(7)(a) and (b) Defendant must choose a physician licensed under the same chapter as Plaintiff’s chiropractic physicians as provided by FS 627.736 as well as all of the prerequisites of FS 627.736 in order for Defendant to withdraw PIP benefits resulting from a PIP compulsory insurance medical examination. Defendant also must notify Lazaro Alcarraga of its intention to suspend PIP benefits as a result of an PIP compulsory insurance medical examination non-attendance.
11) It is undisputed that Lazaro Alcarraga only received chiropractic treatment by Plaintiff inthis case. The court finds that Peter Millheiser, M.D. is not under the same licensing chapter as Plaintiff’s chiropractic doctors in this case. Defendant cannot use the opinion of the medical doctor to suspend PIP benefits in this case. Moreover, Defendant’s person with most knowledge in this case admitted that Defendant cannot use Peter Millheiser, M.D.’s medical opinion or any opinion of a medical doctor to suspend PIP benefits in this case as all treatment in this case is chiropractic. Furthermore, it isundisputed that Defendant failed to notify Lazaro Alcarraga of its intent to suspend PIP benefits as a result of his non-attendance to Peter Millheiser, M.D.’s unilaterally scheduled appointment thereby violating FS 627.736(4) which requires Defendant to do so.
12) It is further undisputed that Defendant unilaterally notified Lazaro Alcarraga of its intent to schedule a PIP compulsory insurance medical examination appointment on August 19, 2004 with Dennis Kogut, DC by and through a letter dated August 2, 2004. On August 10, 2004, Counsel for Lazaro Alcarraga requested Defendant to reschedule the PIP compulsory insurance medical examination to a time mutually convenient for all sides concerned. Defendant’s person with most knowledge admitted that Counsel for Lazaro Alcarraga was not unreasonable for Lazaro Alcarraga’s attorney to ask to reschedule the PIP compulsory insurance medical examination appointments in this case to a time mutually convenient. Defendant never scheduled the chiropractic PIP compulsory insurance medical examination appointment to a time mutually convenient for all sides concerned. It is undisputed that Defendant has no record admissible evidence to show that Lazaro Alcarraga’s non-attendance to Defendant’s PIP compulsory insurance medical examination wasunreasonable. See Universal Medical South Center of South Florida v. Fortune Insurance, 761 So.2d 386 (Fla. 3rd DCA 2000).
13) Defendant failed to provide any admissible record evidence that Defendant notified Lazaro Alcarraga of Defendant’s intent to suspend PIP benefits as a result of Lazaro Alcarraga’s non-attendance of an PIP compulsory insurance medical examination with Dennis Kogut, D.C., that was allegedly scheduled for August 19, 2004 as required by FS 627.736(4).
14) In a letter dated August 25, 2004 Defendant improperly notified Lazaro Alcarraga that it intended to suspend PIP benefits as of August 18, 2004. Defendant’s person with most knowledge admitted that on August 18, 2004 there was no PIP compulsory insurance medical examination scheduled. Defendant’s person with most knowledge further admitted that Defendant failed to take any measures to correct the date that it was suspending PIP benefits.
It isfurther undisputed that Defendant did not notify Lazaro Alcarraga of its intent to suspend PIP benefits asa result of Lazaro Alcarraga’s non-attendance to Dr. Kogut’s medical examination in any other matter. Defendant’s PIP compulsory insurance medical examination cut off letter improperly failed to inform the insured under which licensing chapter it intended to suspend PIP benefits in this case. It is undisputed that Defendant has no record admissible evidence to show that it complied with Florida law in notifying Lazaro Alcarraga of its intent to suspend PIP benefits as a result of an alleged PIP compulsory insurance medical examination no-show. Florida Statute 627.736(4)(b) states the following regarding notification to its insured:
When an insurer pays only a portion of a claim or rejects the claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.
15) As such, Defendant violated FS 627.736(4)(b) by failing to notify Lazaro Alcarraga of its intent to suspend PIP benefits as a result of Lazaro Alcarraga’s non-attendance of a PIP compulsory insurance medical examination. Defendant cannot thereby suspend PIP benefits as a result of Lazaro Alcarraga’s non-attendance of a PIP compulsory insurance medical examination.
16) For the reasons stated above, this court finds that Defendant cannot suspend PIP benefits as a result of Lazaro Alcarraga’s non-attendance of a PIP compulsory insurance medical examination.
17) With respect to Defendant’s EUO no-show affirmative defense, the court finds that Lazaro Alcarraga was not required to attend an EUO for two reasons in this case. The first being that Defendant failed to provide Lazaro Alcarraga with a copy of an insurance policy before scheduled EUO dates even though Lazaro Alcarraga’s attorney requested a copy of the policy in his initial representation letter pursuant to FS 627.4137. In the instant case, Defendant seeks to use its insurance policy to preclude Plaintiff from filing an action against Defendant for the collection of PIP benefits as Defendant contends that Lazaro Alcarraga unreasonably refused to attend an EUO. However, Defendant is precluded from using the very insurance policy that it failed to provide Lazaro Alcarraga in this case. United Automobile Insurance Company v. Rousseau, 682 So.2d 1229 (Fla. 4th DCA 1996) and Figueroa v. US Security Insurance Company, 664 So.2d 1130 (Fla. 3rd DCA 1996).
18) Secondly, Defendant scheduled an EUO to take place in this case on August 17, 2004, with an alternative date scheduled for August 19, 2004. Florida law states that when alternative dates are scheduled for an EUO, the earlier date is waived and is treated as it never existed. As such, the only date that Defendant can contend that Lazaro Alcarraga did not appear to an EUO in this case is August 19, 2004.
19) Defendant’s letter dated August 25, 2004 improperly suspended Lazaro Alcarraga’s PIP benefits as of August 18, 2004 pursuant to an alleged PIP compulsory medical examination no-show. Defendant’s August 25, 2004 letter constitutes a letter of repudiation of the insurance contract between Defendant and Lazaro Alcarraga as of August 18, 2004. Peachtree v. Walden,759 So.2d 7 (Fla. 5th DCA 2000). As such, Lazaro Alcarraga‘s duties under the insurance policy with Defendant were discharged as of August 18, 2004. Therefore, Lazaro Alcarraga had no duty under the insurance policy to attend Defendant’s EUO scheduled on August 19, 2004. United Automobile Insurance Company v. Cicero Ortho-Med Center, Inc., 12 Fla. L. Weekly Supp. 321a, (Florida Eleventh Judicial Circuit, Appellate Capacity 2005).
20) Lazaro Alcarraga’s non-attendance of Defendant’s EUO on August 19, 2004, was not an unreasonable refusal to attend an EUO as Lazaro Alcarraga’s duties under the insurance policy, including the attendance of an EUO, were discharged by Defendant’s August 25, 2004 letter of repudiation suspending PIP benefits as of August 18, 2004. United Automobile Insurance Company, v. Cicero Ortho-Med Center, Inc., and United Automobile Insurance Company v. Dr. Jason Marucci a/a/o Ruth Botero, 12 Fla. L. Weekly Supp. 1037a, (Florida Seventeenth Judicial Circuit Appellate Capacity June 11, 2005).
21) Defendant is precluded from relying upon its peer review in this case as the affidavit of its peer review doctor was untimely filed in opposition of Plaintiff’s summary judgment motion. Rule 1.510(c); Lennertz vs. Dorsey, 421 So.2d 820 (Fla. 4th DCA 1982); Stinnet vs. Longi, 460 So.2d 528 (Fla. 2nd DCA 1984) and Rodriguez vs. Tri-Square Construction, 635 So.2d 125 (Fla. 3rd DCA 1994). Additionally, Defendant obtained its peer review in an untimely fashion. United Automobile Ins. Co. v. Viles,726 So.2d 320 (Fla. 3rd DCA 1998). Accordingly, Defendant has no record admissible evidence that would dispute the reasonableness, relatedness and necessity of Plaintiff’s medical bills in this case.
22) For the reasons stated above, this court grants Plaintiff’s Motion for Summary Final Judgment as to all of the issues.
