14 Fla. L. Weekly Supp. 179b
Insurance — Personal injury protection — Coverage — Actual occurrence of accident — Where both parties rely on insured’s examination under oath, in which insured states that he was injured as result of accident, and insurer has submitted no competent evidence to contravene insured’s statement, medical provider is entitled to summary judgment on issue of existence of accident and injury — Medical expenses — Reasonable, related and necessary expenses — Where insurer has presented no competent evidence to controvert provider’s affidavits, provider is entitled to summary judgment on issue of necessity of treatment rendered prior to independent medical examination — No merit to argument that provider’s affidavit is substantively defective due to notary’s failure to indicate how she identified affiant — Summary judgment is precluded on issue of reasonableness and relatedness of treatment prior to IME where inconsistency between provider’s affidavit and actual bills raises question as to what treatment was actually rendered — Summary judgment is also precluded on issue of deductible where no-fault payment register filed by provider does not establish without material dispute that deductible has been eliminated
COASTAL WELLNESS CENTERS, INC. (a/a/o Luis Rojas), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-13656 COCE 53. December 29, 2006. Robert W. Lee, Judge. Counsel: Rebecca S. Taylor, Coral Springs, for Plaintiff. William Stanford, Coral Gables, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT
This cause came before the Court on December 21, 2006 for hearing of the Plaintiff’s Second Motion for Summary Judgment, and the Court’s having reviewed the Motion and entire Court file, heard argument, reviewed the relevant legal authorities, and been sufficiently advised in the premises, finds as follows:
Background. On September 27, 2006, this Court entered its Order Granting in Part Plaintiff’s Motion for Summary Judgment, which granted Plaintiff’s Motion as to all issues except RRN, the existence of an accident and injury, and the applicability of the deductible. On November 2, 2006, the Plaintiff served its Second Motion for Summary Judgment as to these remaining issues. To the Motion, the Plaintiff attached a copy of the Defendant’s No Fault Payment Register; revised affidavit of Grant Schneider, D.C., which included his Initial Narrative Report, the patient’s progress notes, and the Final Narrative Report; and the sworn statement of Luis Rojas, the patient. On November 15, 2006, the Court set the matter for hearing for December 21, 2006. On December 15, 2006, the Defendant served its Notice of Filing EUO of Luis Rojas in Opposition to Plaintiff’s Motion for Summary Judgment.
At the hearing, the Plaintiff acknowledged that treatment subsequent to the IME remains a disputed issue of material fact. The Plaintiff argued that its submitted evidence had not been controverted on the issue of treatment prior to the IME; the accident and injury; and the applicability of the deductible.
In response, the Defendant argued that Dr. Schneider’s affidavit was not properly notarized because the notary failed to indicate whether she personally knew the affiant or rather referred to his identification. The Defendant also referred to the earlier filed counter-affidavits of Geraldine Burroughs and Dr. Marvin Merrit.
Conclusions of Law. Initially, the Court notes that both the Plaintiff and Defendant are relying on the EUO (sworn statement) of Luis Rojas, the patient. The Defendant has submitted no competent evidence to contravene Rojas’s statement that he was involved in an accident and injured as a result, for which he sought treatment from the Plaintiff. As a result, pursuant to Rule 1.510(d), the Plaintiff is entitled to summary judgment on this issue.
Next, the Court considers whether the medical treatment prior to the IME was necessary. The Defendant has submitted no competent evidence to controvert the Plaintiff’s position set forth in its affidavits. The Court rejects the Defendant’s argument that the Plaintiff’s affidavits are substantively defective due to the notary’s failure to indicate how she knows the affiant. As legal support, the Court relies on Fund Title Note 1.02.05(c) which addresses this issue. The Court approves the legal analysis set forth in the Title Note. As a result, the Plaintiff is entitled to summary judgment on the issue of the necessity of the medical treatment prior to the IME.
Next, the Court considers the reasonableness and relatedness of the specific medical treatment at issue. The Defendant has pointed out that the Plaintiff’s affidavit and attached notes are inconsistent with the actual bills, raising a question as to what treatment was actually rendered. The Court has reviewed the documents and agrees that the Plaintiff has not eliminated disputed issues of material fact on the issue of reasonableness and relatedness prior to the IME.
Finally, the Court finds that the No-Fault Payment Register filed by Plaintiff does not establish without material dispute the elimination of the deductible. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Second Motion for Summary Judgment is GRANTED IN PART. The only remaining issues in the case are whether treatment subsequent to the IME was RRN; whether treatment prior to the IME was reasonable and related to the accident; and whether the deductible is applicable.
