14 Fla. L. Weekly Supp. 782b
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Summary judgment granted in favor of medical provider on issue of reasonableness, relatedness and necessity of MRI where provider’s motion establishes prima facie entitlement to relief, and insurer’s affidavit was untimely served — Independent medical examination and peer review reports, if admissible, do not create genuine issue of material fact where IME was performed on day insured received MRI and opines only as to reasonableness, relatedness or necessity of further treatment — Explanation of benefits — Insurer breached policy by not furnishing provider with EOB County
DAMADIAN MRI IN POMPANO BEACH, P.A., d/b/a STAND UP MRI OF FORT LAUDERDALE, (Roberto Paredes, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court,17th Judicial Circuit in and for Broward County. Case No. COCE 06-007338 (50). May 22, 2007. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, for Plaintiff. Rodney McLellan, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT’S REASONABLE, RELATED AND NECESSARY DEFENSE
THIS CAUSE came before the Court on March 7, 2007 for hearing on the Plaintiff’s Motion for Partial Summary Judgment on Defendant UNITED AUTOMOBILE INSURANCE COMPANY’S, Reasonable, Related and Necessary Defense; the Court having reviewed the Motion and entire court file; heard arguments; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on November 21, 2005. Defendant filed its Answer and Affirmative Defenses to the Plaintiff’s Complaint on February 28, 2006.
2. As for its second affirmative defense, Defendant alleged “. . .when Plaintiff’s bills for medical services that were provided and that are reasonable, necessary and related are applied towards his deductible, they do not exceed $1000. Therefore, Defendant is not liable for payment of said bills, nor are said bills overdue. Dr. Joseph Marfisi performed a Peer Review in this case.”
3. On January 2, 2007 Plaintiff filed a Motion for Partial Summary Judgment on the Defendant’s second affirmative defense. There is no genuine issue as to any material fact with respect to this affirmative defense, and for the reasons set forth herein, Plaintiff is entitled to judgment in its favor as a matter of law.
Conclusions of Law:
4. Pursuant to Fla. Stat. §627.736(1)(a), the insurer must provide medical benefits to the insured so long as such benefits are reasonably, related and necessary remedial treatment. The aforementioned statute is liberally construed in favor of the insured for the purpose of the reasonable, related and necessary test. Palma v. State Farm Fire & Cas Co., 489 So. 2d 147 (Fla. 4th DCA 1986); Derius v. Allstate Indemnity Company, 723 So. 2d 271 (Fla. 4th DCA 1998).
5. On January 16, 2007, Plaintiff filed an affidavit of Dr. Ronald Woodley, D.C., the physician whom prescribed the claimant’s MRI at issue in the instant claim. Dr. Woodley’s affidavit attested to the medical treatment provided by the Plaintiff as being reasonable, related and necessary as a result of the claimant’s motor vehicle accident of October 21, 2004.
6. Under the holdings of existing case law, the affidavit of the medical provider stating that the care given to the patient was reasonable, related, and necessary is enough for Plaintiff to meet its burden of proof as to this element of the claim. United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Jud. Cir. 2004).
7. Since DAMADIAN demonstrated its prima facie case, the burden now shifts to UNITED to show evidence demonstrating a genuine issue of material fact, Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966).
8. Defendant hand delivered its Notice of Filing Affidavit of Joseph Marfisi, D.C. to Plaintiff’s counsel on March 2, 2007. Along with said affidavit, Defendant attached Dr. Marfisi’s IME and Peer Review Report. Due to the untimeliness of said affidavit this Court is not able to consider Defendant’s supporting affidavit and/or attached exhibits. Fla. R. Civ. P. 1.510(c), states in relevant part, “To the extent that such summary judgment evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing them at least 5 days prior to the date of hearing or by delivering them to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of the hearing.” (2006).
9. In the absence of exigent circumstances an untimely affidavit may not be considered by the court. United Automobile Insurance Company v. Physician’s First Choice Interpretation, Inc., 12 Fla. L. Weekly Supp. 937a (17th Cir. Ct. App. Jun. 15, 2006); United Automobile Insurance Co. v. All Care Health and Wellness, Inc., 12 Fla. L. Weekly Supp. 206a (11th Cir. Ct. App. Dec. 7, 2004); Coastal Caribbean Corporation v. Lola Rawlings, 361 So.2d 719, 720 (Fla. 4th DCA, 1978).
10. Courts have consistently held that “where a medical provider’s motion for summary judgment with a supporting affidavit establishes prima facie entitlement to relief on issue of reasonable, related and necessary, and insurer’s affidavit is untimely served, summary judgment is granted in favor of the provider. Coastal Wellness Center, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 1098a (17th Jud. Cir. 2005).
11. In addition to the untimeliness of the Defendant’s affidavit, the Plaintiff agrees the attached IME Report and Peer Review Report are not admissible as summary judgment evidence. “When a record is made for the purposes of litigation, its trustworthiness is suspect and should be closely scrutinized and that most of the time, the report of an expert made for the purpose of litigation is not admissible under §90.803(6).” McElroy v. Perry, 753 So. 2d 121 (Fla. 2nd DCA 2000).
12. In Physician’s First Medical, Inc. v. Grenada Ins. Co., the court held that the Affidavit of the insurer’s IME physician and the attached peer review were not competent evidence that gave rise to a genuine issue of material fact, 12 Fla. L. Weekly Supp. 776a (11th Cir. Ct., May 9, 2005). The court reasoned that the doctor’s “affidavit fails to state a proper foundation for the admissibility of his report under an exception to the hearsay rule. It only purports to authenticate his report, which is a document created for the sole purpose of litigation, thus is inadmissible as a business document pursuant to 90.803(6).” Id.
13. Even if this Court finds that the IME and Peer Review reports are admissible, neither of these reports provide evidence that creates a genuine issue of material fact.
14. Dr. Marfisi performed the IME on the claimant on the same (and only) date the claimant received diagnostic testing from Plaintiff. Dr. Marfisi’s IME Report fails to mention the reasonableness, relation or necessity of the MRI rendered by Plaintiff. Dr. Marfisi’s IME Report and his Affidavit both indicate that, as a result of his findings in the IME on December 15, 2004, no further treatment was reasonable, related or necessary. This was further supported in a letter sent by the Defendant to the claimant’s attorney on December 31, 2004, stating that UNITED “hereby suspends benefits under this licensing chapter for any services rendered after 12/15/2004.”
15. Not only did Defendant fail to establish that it had reasonable proof before denying the payment, but UNITED also failed to furnish Plaintiff with either an Explanation of Benefits or a response to its Demand Letter, dated February 23, 2005.
16. UNITED was obligated by statutory and contractual duties to provide Plaintiff with notification and reasons for nonpayment, and failure to do so is a breach of the insurance policy. It is an “accepted principle of law that when parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes part of the contract.” Foundation Health v. Westside EKG Associates, Nos. SC05-870 (Fla. 2006).
17. Pursuant to §627.736(4)(9)(f): If the insurer determines that it has been improperly billed, the insurer shall notify the insured. Defendant’s failure to provide Plaintiff with any notification results in a breach of the insurance policy contract. United Automobile Insurance Company v. R.J. Trapana, M.D. P.A., 12 Fla. L. Weekly Supp. 452a (17th Cir. Ct., Feb. 14, 2005). “The insurer’s obligation to provide an itemized statement is clear. United Automobile’s failure to provide the required specification resulted in a breach of its obligations. . .” Id.
Accordingly, it is ORDERED AND ADJUDGED, that Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Reasonable, Related and Necessary Affirmative Defense is Granted.
