13 Fla. L. Weekly Supp. 425a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Peer review — Timeliness — Trial court erred in ruling that peer review submitted by insurer in opposition to motion for summary judgment was untimely — There is no requirement in Florida law that insurer file peer review within 30 days of date of notice of loss to contest reasonableness, relatedness or necessity of PIP claim — Further, while law requires that insurer obtain medical report prior to withdrawing benefits without consent of insured, it does not require medical report prior to denying benefits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ASCLEPIUS MEDICAL, INC. A/A/O NESTOR PALAEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-202AP & 05-370 AP. L.C. Case No. 03-12599 CC 25(2). February 21, 2006. On appeal from the County Court, Miami-Dade County, King, Lawrence D., J. Counsel: Michael J. Neimand, The Office of the General Counsel, for Appellant. Kevin W. Whitehead, Downs Brill Whitehead & Sage, for Appellee.
(Before GLICK, ESPINOSA-DENNIS, ADRIEN, JJ.)
(GLICK, Judge.) This is an appeal of a county court order granting summary judgment in favor of the Appellee, Asclepius Medical, Inc. (“Asclepius”), assignee for Nestor Pelaez. Mr. Palaez was injured in a motor vehicle accident and alleged that he sustained injuries which required medical treatment. Thereafter, Mr. Palaez assigned his rights to receive payment for his medical treatment to Asclepius. Asclepius submitted its medical bills to the Appellant, United Automobile Insurance Company (“United Auto”). However, United Auto did not submit payment for the medical bills. As a result, Asclepius, filed suit against United Auto, for failure to pay Personal Injury Protection [“PIP”] benefits under Fla. Stat. §627.730 (2003).
On November 2, 2004, Asclepius submitted its motion for summary. A hearing was held on the motion for summary judgment on April 28, 2005. At the hearing, the lower court orally proclaimed that the peer review performed by Dr. Goldberg was untimely and could not be relied upon to deny benefits. In addition, the court held that there were no countervailing reports under 7(a) of the statute that would give reasonable grounds for the denial or withdrawal of benefits under United Automobile Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1999). In the court’s written order, it stated “the court refuses to consider the affidavit of David Goldberg, M.D., with attached ‘peer review’ report in an effort to create a genuine issue of material fact regarding whether the subject treatment was reasonable, related, necessary.”
The standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze summary judgment properly this Court must determine (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 130-131 (2003 ed., West 2002).
The first prong of summary judgment review requires this Court to determine whether there is a genuine issue of material fact. Since the record is devoid of any genuine issues of material fact, we need only discuss the second prong of review.
The second prong of summary judgment review requires this Court to determine whether the lower court applied the correct rule of law. Volusia County, 760 So. 2d at 130. The sole issue of law raised on appeal is the lower court’s ruling that the peer review was untimely. At the hearing on the motion for summary judgment, the lower court held that the peer review was untimely; yet, in its order, it simply stated that it rejected the peer review. The lower court failed to clearly articulate its reason why it found that the peer review was untimely.
Based on the line of discussion in the summary judgment transcript the lower court may have two reasons for its decision. The lower court may have believed that a peer review must be filed within 30 days from the date the insurance company received notice of the PIP claim. On the other hand, the court may have believed that the peer review was untimely based on the fact that United Auto did not submit it prior to denying Asclepius’ PIP claim.
30 Day Issue. Florida law is devoid of any requirement that an insurance company must file a peer review within 30 days from the date of the notice of loss in order to establish or contest the reasonable, related, and necessity of a PIP claim. Both United Automobile Ins. Co. v. Rodriguez and Allstate Indemnity Co. v. Derius have held that the PIP statute does not require an insurer to obtain a written report as to the reasonableness of the treatment within thirty days of notice of the bill in order to contest the payment. 808 So. 2d 82, 84-5 (Fla. 2001); 773 So. 2d 1190, 1191 (Fla. 4th DCA 2000). The thirty day period is only a provision for an insurer to avoid interest and attorney fees, not to establish reasonable proof of a PIP claim. Therefore, if the lower court believed that the medical report was untimely based on a 30 day requirement, we reverse since Florida law is devoid of such requirement.
Medical Report Issue. Alternatively, the lower court may have found the peer review untimely because it may have believed that a medical report (peer review) is required before withdrawing payment per Viles. In Viles, the insured submitted a PIP claim to its insurer. The insurer paid $1,100.00 of the medical bills and then denied payment on the outstanding bills. The insurer filed suit against the insurer and argued that a medical report by a physician was required prior to withdrawing benefits. The appellate court agreed with the insured and held that §627.736(7)(a), Fla. Stat. is clear that an insurer may not withdraw payment of a treating physician without consent of the injured person. . .unless the insurer first obtains a report by a physician. . .” Id. at 320.
United Auto argues that it did not withdraw payment, since payment was never submitted on Asclepius’ claim. Rather, United Auto asserts that this claim is distinguishable from Viles since the claim was denied, not withdrawn. In support, United Auto argues Derius which has held that an insurer may reduce bills for medical treatment pursuant to §627.736(1)(a) without obtaining a report from a physician. 773 So. 2d at 1191. United Auto argues that a denial is similar to a reduction since in both situations the insurer makes a unilateral decision regarding is responsibility for payment. Not to mention, United Auto argues that a denial or reduction is not an affirmative finding that the medical treatment was unreasonable, unnecessary, or unrelated. United Auto’s argument is persuasive. A review of all subparts of §627.736, Fla. Stat. only refers to a medical report being required when there is a withdrawal of benefits. No statute or case law requires a medical report prior to denying benefits. Thus, this court reverses the lower court’s ruling.
Accordingly, we reverse the lower court’s order awarding Asclepius attorney’s fees and costs. Asclepius will be entitled to attorney’s fees and costs, pursuant to §627.428, Fla. Stat. (2003), provided it prevails on remand.
FOR THESE REASONS, the summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (ESPINOSA-DENNIS, ADRIEN, JJ., concur.)
