14 Fla. L. Weekly Supp. 1019a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Trial court’s reasoning as to insufficiency of affidavit filed in opposition to motion for summary judgment is unclear — Case is remanded for reconsideration and more specific ruling — Insurer is not barred from contesting medical bill solely by fact that peer review affidavit was obtained and filed after initial denial of benefits
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. ERIC G. FRIEDMAN, D.C., P.A. a/a/o ROSILIA CHRISTIAN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-502 AP, 07-015 AP. L.C. Case No. 05-002976 CA 23. September 6, 2007. An Appeal from the County Court for Miami-Dade County, Eric W. Hendon, Judge. Counsel: Denise Garno, United Automobile Insurance Company, for Appellant. Steven M. Singer, Law Offices of Steven M. Singer, P.A., for Appellee.
(Before BAGLEY, LANGER and LEBAN, JJ.)
(LANGER, J.) In July 2004, Rosilia Christian, a United Auto insured, was injured in a car accident. She sought medical treatment for her injuries from the Appellee, Eric G. Friedman. Once treatment was completed, Dr. Friedman, as Ms. Christian’s assignee, submitted medical bills to United Auto for payment of PIP benefits. United Auto refused payment and the bills subsequently became overdue. On February 22, 2005, Dr. Friedman filed suit against United Auto for breach of contract.
On August 4, 2006, Dr. Friedman filed a motion for summary judgment on the grounds that all treatment was reasonable, related and necessary. Over one month later, on September 12, 2006, United Auto filed a peer review affidavit executed by Dr. Joseph Marfisi. The affidavit was dated September 1, 2006 and indicated that Ms. Christian’s treatment was not reasonable, related or necessary. Dr. Friedman argued that Dr. Marfisi’s affidavit was insufficient because 1) Dr. Marfisi is located in Palm Beach County; 2) it was not based on his own personal knowledge; and 3) it was not in United Auto’s possession prior to the denial of benefits. The lower court entered summary judgment in favor of Dr. Friedman. United Auto subsequently filed this appeal.
The standard of review for summary judgment is de novo and requires this court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
To enter final summary judgment in favor of Dr. Friedman, the lower court would have had to find that Dr. Marfisi’s affidavit was somehow insufficient to establish a genuine issue of material fact as to the reasonableness, relatedness or necessity of Ms. Christian’s medical treatment. But a review of both the record and the lower court’s final summary judgment order leaves this court unable to ascertain the lower court’s legal reasoning as to the affidavit’s insufficiency. Because the lower court’s reasoning is indistinct, this court cannot determine whether that reasoning was valid. As such, the case is remanded to the lower court for reconsideration and for a more specific written ruling as to the sufficiency or insufficiency of Dr. Marfisi’s affidavit.
Lastly, this court reverses the lower court’s ruling to the extent it is based at all on the fact that United Auto acquired Dr. Marfisi’s affidavit only after refusing payment to Dr. Friedman. In United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2002), the insurer similarly acquired and filed a medical report affidavit after first refusing to pay a claim. The insured moved for summary judgment on the grounds that the report was untimely. The Florida Supreme Court sided with the insurer holding that if payment of PIP claims is overdue as a result of non-payment or denial, the only penalties that may be levied against the insurer — after the bills are deemed legitimate — are ten percent interest and attorney’s fees. Id. at 84. The Court went on to state that when a medical report is obtained after an initial denial, the insurer is not faced with the penalty of being forever barred from contesting the claim. Rodriguez, 808 So. 2d at 84, 88. Similarly here, United Auto is not barred from contesting Dr. Freidman’s bill based solely on the fact that Dr. Marfisi’s affidavit was obtained and filed after the initial benefits denial.
The final summary judgment entered by the trial court is reversed and remanded for proceedings consistent with this opinion.
REVERSED and REMANDED. (BAGLEY and LEBAN, JJ., concur.)
