13 Fla. L. Weekly Supp. 505a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Medical provider’s motion for partial summary judgment on issue of reasonableness, relatedness and necessity of treatment is granted where provider’s motion and affidavit facially establish entitlement to summary judgment on issue; insurer failed to submit any affidavits or reports to rebut provider’s assertion that treatment was reasonable, related and necessary; and insurer withdrew transcript of deposition of representative of billing company related to issue
TOTAL HEALTH CHIROPRACTIC, P.A., (Gina Orlando, Patient), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 03-009102 (54). February 16, 2006. Lisa Trachman, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Michael Rudd, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the undersigned upon the Plaintiff’s Motion for Partial Summary Judgment, and this Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, it is hereupon:
ORDERED AND ADJUDGED as follows:
1. On February 17, 2003, the Plaintiff filed its Complaint seeking unpaid PIP benefits.
2. On March 31, 2005, the Plaintiff served its Motion for Partial Summary Judgment. The issue raised was whether the services rendered were reasonable, related to the accident, and medically necessary.
3. Under Fla. Stat. § 627.736(1)(a) an insurer must provide medical benefits to the insured so long as such benefits are reasonable, related, and necessary remedial treatment. This statute is liberally construed in favor of the insured for the purposes of the “reasonable, related and necessary” test. Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986).
4. The Plaintiff filed the affidavit of Dr. Michael Minnet, M.D. in support of its Motion.
5. On June 22, 2005, Defendant filed a motion to strike Plaintiff’s affidavit. This Court DENIED Defendant’s Motion to Strike the affidavit of Dr. Minnet.
6. On July 6, 2005, this Court heard Plaintiff’s motion for Partial Summary Judgment and deferred ruling “so that the Defendant [could] depose a representative of GSR Billing. The Defendant [had to] submit the transcript of that Deposition, together with any sworn attachments, within 45 days of [July 6, 2005]. The Defendant [was not permitted to] submit any other documents or affidavits in opposition to the motion as it [had] failed to file or serve same prior to today’s hearing.”
7. On August 11, 2005, Defendant requested an extension of time to comply with this Court’s Order dated July 6, 2005.
8. This Court granted the Defendant’s motion for extension and Defendant was given an additional 30 days within which to comply with the July 6, 2005 Order.
9. The deposition of Herb Cane, the representative of GSR Billing, was taken on August 30, 2005. The transcript of this deposition was filed with this Court.
10. On September 27, 2005, Defendant filed its Notice of Withdrawing its Amended Notice of Filing Deposition of Herb Cane and Sworn Attachments.
11. Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
12. The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989).
13. Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue.
14. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996).
15. To create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, Defendant must either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999) (jury could not reject uncontroverted medical testimony on permanent injury); Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993) (failure to impeach uncontroverted expert testimony); Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992) (Jury of lay persons cannot be credited with having technical expertise to totally disregard expert medical opinion in the absence of evidence which clearly and directly contradicts expert opinion or the facts upon which that opinion is predicated).
16. The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Gina Orlando was reasonable, medically necessary, and related to the accident.
17. In this case, the pleadings on file and record evidence submitted herewith demonstrate conclusively that no genuine issue of material fact exists on this issue.
18. Initially, the Court noted that the Plaintiff’s Motion and submitted affidavit facially established entitlement to summary judgment on this issue.
19. Once the Plaintiff’s burden was satisfied, the question became whether the Defendant had submitted to the Court any affidavits, sworn statements or reports that are sufficient to raise a disputed issue of material fact. “The party seeking to contest an expert opinion must either: (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence.” Rose v. Dwin, 762 So.2d 532, 533 (Fla. 4th DCA 2000) (citing Jarrell).
20. For the following reasons, this Court concludes that there is no genuine issue of material fact with regard to the reasonableness, medical necessity, or relatedness of the treatment by the Plaintiff to Gina Orlando:
a. Defendant has failed to submit any affidavits or reports to rebut the Plaintiff’s assertion that treatment rendered was reasonable, medically necessary, and related to the accident.
b. Ruling on this issue was deferred by this Court pending the Defendant’s taking of the deposition of the representative of GSR Billing, Herb Cane. Defendant later withdrew this deposition transcript and sworn attachments; therefore, no genuine issue of material fact can be established as a result of this deposition.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
