14 Fla. L. Weekly Supp. 939a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 123a
Insurance — Personal injury protection — Coverage — Medical expenses — Failure to obtain reasonable proof within 30 days — Insurer is not barred from contesting reasonableness, relatedness or necessity of treatment merely because peer review was obtained after benefits were denied and overdue — Remand to consider legal sufficiency of peer review affidavit
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. PARTNERS IN HEALTH CHIROPRACTIC CENTER, a/a/o CECELIE YANIQUE GERLIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-187 AP, 06-324 AP. L.C. Case No. 03-5190 SP. July 12, 2007. An appeal from the County Court for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: June Galkoski Hoffman, Fowler White Burnett P.A., for Appellant. Dean A. Mitchell and Richard E. Doherty, for Appellee.
(Before CINDY S. LEDERMAN, MARK KING LEBAN, and BEATRICE BUTCHKO, JJ.)
[Editor’s note: see 18 Fla. L. Weekly Supp. 499a]
(BUTCHKO, J.) This is an appeal of the lower court’s entry of summary judgment in favor of Appellee, Partners in Health Chiropractic Center (“PHCC”), assignee medical provider for Cecelie Gerlin. Ms. Gerlin, a United Auto insured, was injured in a car accident and sought treatment from PHCC between June and November, 2003. PHCC submitted bills to United Auto totaling $3,385. United Auto denied payment.
In July 2005, PHCC filed a complaint against United Auto alleging non-payment of overdue benefits under the subject policy. In March 2006, PHCC filed a motion for summary judgment on the grounds that Ms. Gerlin’s chiropractic treatment was reasonable, related and necessary. In response, United Auto filed a peer review affidavit executed by a chiropractor, Marvin Merritt, who had conducted the review some four months earlier in November 2005. Dr. Merritt’s report indicated that Ms. Gerlin’s treatment was not reasonable, related or necessary. PHCC argued that United Auto was prevented from using Dr. Merritt’s report to support its denial of benefits because it was obtained after the denial itself. PHCC also objected to Dr. Merritt’s affidavit as failing to meet the standard of “competent evidence” within the meaning of Fla. R. Civ. P. 1.510(e). Lastly, PHCC argued that Dr. Merritt’s affidavit was invalid because it was not based on personal knowledge, made reference to unattached, extrinsic documents, contained inadmissible hearsay, and provided no competent basis for his opinions.
The lower court ultimately struck Dr. Merritt’s peer review and granted summary judgment in favor of PHCC finding that in order for the peer review to support a denial of benefits, United Auto was required to obtain the review prior to the denial. United Auto timely filed the instant 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).
This court is presented with two issues: first, whether United Auto is prevented from using Dr. Merritt’s peer review when it was obtained after benefits were already denied and overdue; and second, whether Dr. Merritt’s peer review was legally sufficient. With regard to the first issue, this court holds consistent with its recent decision in United Automobile Ins. Co. v. Tate, 14 Fla. L. Weekly Supp. 628a (11th Judicial Circuit Court, May 9, 2007) — United Auto is not barred from contesting reasonableness, relatedness or necessity simply because its peer review was obtained after benefits were denied and overdue.
We remand the case to the lower court for an analysis of the second issue as this court is unable to determine based on both a review of the record and the trial court’s summary judgment order, whether the lower court analyzed Dr. Merritt’s peer review affidavit for legal sufficiency. If Dr. Merritt’s affidavit fails to meet legal standards, then summary judgment in favor of PHCC is appropriate. If the affidavit is legally sufficient, however, then summary judgment is improper.
REVERSED and REMANDED for proceedings consistent with this opinion. (LEDERMAN and LEBAN, JJ., Concur.)
