13 Fla. L. Weekly Supp. 1206a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Notice of filing compulsory medical examination report could not be relied upon by insurer at summary judgment proceeding where notice was untimely filed at hearing without exigent circumstances — Medical report, which was not accompanied by affidavit or sworn testimony, was hearsay — Deposition testimony of litigation adjuster was unreliable and inadmissible to show medical bills were not within usual and customary range where adjuster referred to Physician’s Fee and Coding Guide but did not identify to which year or edition of guide she was referring or attach pages referenced to deposition, and insurer failed to submit admissible evidence that would establish that adjuster was expert who could rely on guide — Where litigation adjuster who did not actually make reductions read from claims adjuster’s notes which were not made part of record pursuant to insurer’s work product privilege objection, reliance on claims adjuster’s notes was tantamount to relying on hearsay and violated sword and shield doctrine — Summary judgment entered in favor of medical provider
UNITED TRAUMA & MEDICAL CENTER, a/a/o Eduardo Vega, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-4113 SP 25. September 27, 2006. Lawrence D. King, Judge. Counsel: George A. David, George A. David, P.A., Coral Gables. Russell Kolodzie.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY FINAL JUDGMENT
Plaintiff’s Motion for Summary Final Judgment as to all of the issues in this case was heard before this court on September 5, 2006. Counsel for Defendant being duly noticed was present as well as Counsel for Plaintiff. This court makes the following findings/rulings regarding the undisputed material facts and the record presented before this court:
1) On October 10, 2003, Eduardo Vega was involved in an automobile accident in which he sustained bodily injuries. At the time the accident, Eduardo Vega was the insured of Defendant that provided PIP coverage for Eduardo Vega’s medical bills. On or about October 10, 2003, Eduardo Vega began treatment with Plaintiff for his injuries. Eduardo Vega treated with Plaintiff until February 19, 2004;
2) On October 30, 2003, Eduardo Vega executed an Assignment of Benefits in favor of Plaintiff assigning his rights for the collection and prosecution for the payment of any and all PIP benefits owed to Eduardo Vega under hisinsurance policy with Defendant. Plaintiff timely placed Defendant on notice of all of its claims for the payment of medical bills for the treatment of Eduardo Vega. The total amount of medical bills that Plaintiff submitted to Defendant for the treatment of Eduardo Vega was $4,450.00;
3) Defendant failed to pay for any of Plaintiff’s medical bills. As a result thereof, Plaintiff was required to institute a lawsuit against Defendant for the payment of PIP benefits owed under Eduardo Vega’s insurance policy for medical bills expended in the treatment of Eduardo Vega;
4) Defendant does not contest that Plaintiff provided Defendant timely receipt of all Plaintiff’s claims for PIP benefits and that Plaintiff complied withFS 627.736(11) inproviding Defendant with the presuit demand letter pursuant to that statute. Plaintiff’s claims for PIP benefits are as follows: on December 19, 2003, Defendant received copies of health insurance claim forms and medical records for Eduardo Vega for dates of treatment between October 30, 2003
and December 4, 2003, amounting to $2,565.00 in total medical bills; on January 14, 2004, Defendant received copies of health insurance claim forms and medical records for medical treatment of Eduardo Vega that took place from December 17, 2003 through December 22, 2003 amounting to $490.00; on February 10, 2004, Defendant received copies of health insurance claim forms and medical reports for treatment of Eduardo Vega that took place from January 8, 2004 through February 2, 2004 amounting to $760.00; and on March 5, 2004, Defendant received copies of health insurance claims forms and medical reports for treatment of Eduardo Vega that took place from February 5, 2004 through February 19, 2004 amounting to $635.00;
5) Defendant admitted that Defendant does not have any evidence to dispute that an accident occurred in this case and that Eduardo Vega was involved in the accident. Defendant also admitted that Defendant does not have any evidence to dispute that Eduardo Vega was injured in the accident. Defendant admits that this accident took place within the coverage period of the policy and that coverage exists in this case;
6) Attached to Plaintiff’s summary judgment motion were copies of affidavits of Eduardo Vega’s treating physician and Plaintiff’s person with most knowledge regarding billing that testified that the treatment was reasonable, necessary and related to the accident subject to this case within a reasonable degree of medical probability and within the usual and customary charges for like medical doctors within the Miami-Dade County area;
7) Defendant has plead four Affirmative Defenses in this case. Defendant’s Affirmative Defenses are as follows:
a) Defendant states that the insurance policy at issue in the case at bar includes a Two Thousand Dollar ($2,000.00) deductible, whereby the policyholder contractually agreed to be financially responsible for the first $2,000.00 in medical services, treatments, and/or PIP benefits in the event of a loss that occurs within the policy period. Defendant states that Plaintiff’s bill for medical services wasapplied towards this Claimant’s deductible, therefore Defendant is not liable for payment of said bill, nor is said bill overdue.
b) Defendant states that the medical bills allegedly incurred by the Plaintiff were not reasonable for the services rendered. Defendant states that the medical expenses incurred by Plaintiff were not reasonable, related or necessary; that the charges were above usual and customary; that it had reasonable proof that it was not responsible for payment of the subject bills in that the expenses were excessive for the services rendered and the services provided were excessive for the alleged injuries resulting from the accident set forth in the complaint, accordingly, the payment of said bills is not overdue.
c) Defendant states that it is only required to make payments pursuant to Florida Statute 627.736 and Defendant’s policy insurance for all reasonable expenses for necessary medical, surgical, x-ray, dental and rehabilitative services related to the subject accident. Defendant has denied payment for medical expenses incurred subsequent to February 3, 2004, as not being reasonable and/or necessary based on the opinion of Dr. Pedro Musa-Ris, M.D.
d) Defendant states that Assignor, Eduardo Vega, has unreasonably failed and/or refused to attend independent medical examination(s) scheduled by Defendant, or on Defendant’s behalf, on 1/5/04 and 2/3/04 with Luis M. Castillo, D.C. As such, Assignor/Plaintiff has failed to comply with conditions precedent and/or subsequent and Defendant is not obligated to pay the medical charges received by Defendant subsequent to Assignor’s non-attendance. Assignor’s failure and/or refusal also constitute a violation of Florida Statute 627.736. As a result of this failure to attend independent medical examination, Defendant has denied payment for all charges subsequent to January 5, 2004;
8) Plaintiff admitted that the Defendant’s $2000.00 deductible applied to the instant case but did not agree that all of Plaintiff’s medical bills fell below the deductible as Defendant contended in its first Affirmative Defense;
9) On September 5, 2006, Defendant hand-delivered to Plaintiff’s counsel at the hearing a Notice of Filing the Compulsory Medical Examination report of Pedro Musa-Ris, M.D. Said medical report was not accompanied by an affidavit or any sworn testimony. The court finds that Defendant’s Notice of Filing could not be relied on at a summary judgment proceeding as it was filed untimely contrary to Rule 1.510(c), Florida Rules of Civil Procedure (2006) and Defendant provided the court with no exigent circumstances as to why the Notice of Filing should be considered. 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). Moreover, the court found that Pedro Musa-Ris, M.D.’s medical report was hearsay and could not be considered pursuant to Rule 1.510(e). First Union National Bank of Fla. vs. Ruiz, 785 So.2d 589 (Fla 1st DCA 2001);
10) Defendant presented deposition testimony of defendant’s litigation adjustor to dispute the amount of the charges of Plaintiff’s medical bills incurred in the year 2004. Defendant sought to use the testimony of litigation adjustor to show that Plaintiff’s medical bills were not within the usual and customary range for chiropractic treatment in Miami-Dade County. It isundisputed that Defendant’s litigation adjustor referred to a book entitled Physician’s Fee and Coding Guide and failed to mention which year or edition of the Guide she was relying on. Moreover, Defendant failed to submit record admissible evidence that would show that its litigation adjustor was an expert as defined by the Florida Evidence Code and could rely upon the Physician’s Fee and Coding Guide. It is further undisputed that Defendant failed to attach a copy of the pages from the Physician’s Fee and Coding Guide that Defendant’s litigation adjustor referred to in her deposition testimony. Moreover, Defendant’s PIP claims adjuster, not the litigation adjustor, made the actual reductions and the litigation adjustor simply read in from the PIP claims adjuster’s notes determined the reductions. Defendant claimed that the PIP claims adjuster’s notes regarding the reductions were work product privilege and would not disclose those notes to Plaintiff. The court found that Defendant’s litigation adjustor’s testimony regarding reduction of Plaintiff’s charges for medical treatment was unreliable and otherwise inadmissible summary judgment evidence as Defendant’s litigation adjustor relied upon the Physician’s Fee and Coding Guide of an unknown year to dispute medical charges for the year 2004. The court additionally found that the litigation adjustor’s relying on the PIP adjustor’s notes that were not made part of the record and that were not disclosed pursuant to Defendant’s work product privilege objection was tantamount to the adjustor relying upon inadmissible hearsay and also violated the sword and shield doctrine regarding work product privilege. The court finds that the Defendant is precluded from not disclosing items pursuant to work product privilege but then using those work product privilege documents at a summary judgment proceeding. The court additionally precluded Defendant from relying upon the Physician’s Fee and Coding Guide as it was not attached to the deposition transcript of Defendant’s litigation adjustor contrary to Florida Rule of Civil Procedure 1.510(e) (2005). Zoda vs. Hedden, 596 So.2d 1.225 (Fla. 2nd DCA 1992); Crosby v. Paxson Elec. Co., 534 So.2d 787 (Fla. 1st DCA 1988); Thompson v. Citizens Nat. Bank of Leesburg, Florida, 433 So.2d 32 (Fla. 5th DCA 1983). Rule 1.510(e) (2005) requires the following regarding affidavits in a Summary Judgment proceeding:
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
11) The court finds that Rule 1.510(e), Florida Rules of Civil Procedure requires that the very portions of the Physician’s Fee and Coding Guide that the litigation adjustor relied upon in her sworn testimony to be attached thereto and be made as record summary judgment evidence as defined under the rule;
12) Since the deposition testimony of Defendant’s litigation adjustor could not be used in these proceedings, the court finds that Defendant presented no record admissible evidence to dispute the reasonableness of the charges of Plaintiff’s medical treatment. Since Defendant could not dispute that Plaintiff’s medical bills were reasonable, necessary and related to the accident in question, Defendant’s Affirmative Defense claiming that Plaintiff’s medical bills were below the deductible in this case does not apply as Defendant agreed that without the litigation adjustor’s testimony regarding medical bill reductions and Pedro Musa-Ris, M.D.’s medical report, Plaintiff’s medical bills were above the deductible in this case. The Court finds that the Plaintiff met its burden in presenting its Motion for Summary Final Judgment. Since the Defendant had no viable affirmative defenses and no admissible record Summary Judgment evidence to dispute Plaintiff’s Motion for Summary Final Judgment, the court grants Plaintiff’s Motion for Summary Final Judgment;
13) Based upon the undisputed material facts presented in the record before this court and applicable Florida law, this court grants Plaintiff’s Motion for Summary Final Judgment in this case. This court finds that Plaintiff is entitled to $4,450.00 in PIP benefits (less the 80% statutory reduction and $2000 deductible) plus statutory interest.
This Court reserves jurisdiction for the taxation of Plaintiff’s costs and attorney’s fees in this case.
