14 Fla. L. Weekly Supp. 937a
Insurance — Personal injury protection — Coverage — Medical expenses — Failure to obtain proof within 30 days — Insurer that denied benefits as soon as claim was submitted was not required to obtain peer review report within 30 days of receipt of bills in order to contest claim on grounds of reasonableness, relatedness and necessity
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. CONTEXT MEDICAL GROUP, a/a/o JENNIFER CORDOBA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-274 AP. L.C. Case No. 03-005206 CC 23. July 24, 2007. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel, for appellant. Marlene S. Reiss, Stephens, Lynn, et al., for appellee.
(Before BARBARA ARECES, PETER ADRIEN, and SPENCER EIG, JJ.)
(PER CURIAM.) On March 17, 2003, the Assignee, Context Medical Group (“Context”) filed a complaint against the Insurer, United Automobile Insurance Company (“United”) for Breach of Contract for PIP benefits. United filed its answer and raised the affirmative defenses of the failure to attend an examination under oath and licensing. On March 31, 2006, Context filed a motion for summary judgment on the grounds that treatment was reasonable, related and necessary. Context filed the affidavit of Dr. Ortiz who stated that treatment was reasonable, related and necessary. In opposition to the Plaintiff’s Motion for Summary Judgment, United filed a peer review report by Dr. Millheiser that was obtained on May 18, 2006. It was his opinion that treatment was not reasonable, related or necessary to the accident. On April 21, 2006, a hearing was held on the plaintiff’s motion for summary judgment. Context claimed that Dr. Millheiser’s report should not be considered since it was obtained more than 30 days after receipt of the notice of loss. The trial court agreed and refused to consider Dr. Millheiser’s report. The trial court granted the plaintiff’s motion for summary judgment, and found the treatment to be reasonable, related, and necessary. The affirmative defenses were the only issues left for trial. The matter was resolved and final judgment was entered in favor of Context, and United reserved the right to appeal the trial court’s decision to disregard the peer review report.
The standard of review applicable to the grant of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). To analyze summary judgment properly, this Court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Id.
In this case, there is no issue of material fact. This Court need only review whether the trial court applied the correct rule of law. In United Automobile Insurance Co. v. Viles, 726 So.2d 320, 321 (Fla. 3d DCA 1998), United Auto began paying benefits before denying the outstanding bills. The Third District Court of Appeal determined that any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, it is a condition precedent pursuant section 627.736(7)(a), Florida Statutes (1998) that an insurer obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related or necessary in order for the insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, relatedness or necessity. (Emphasis added).
In United Automobile Insurance Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001), the Supreme Court of Florida was presented the issue of whether the payment of benefits for a PIP claim is “overdue” under section 627.736, Florida Statutes (1997), and if it is overdue, are the penalties set forth in the Florida Statutes the only penalties that may be levied against the insurer, or is the insurer also forever barred from contesting the claim. The court determined that Florida law is devoid of any requirement that an insurance company must file a peer review within 30 days from the date of the notice of loss in order to establish or contest the reasonableness, relatedness, and necessity of a PIP claim. Id. at 87. The thirty day period is only a provision for an insurer to avoid interest and attorney fees, not to establish reasonable proof of a PIP claim. Id.
In this case, payment was denied as soon as the claim was submitted. Although the peer review was conducted after the denial of benefits, the court in Rodriguez specifically states that the insurer is not required to request a peer review within thirty days. The insurer can deny the benefits and take the risk of acquiring penalties of interest and attorneys fees. In Viles, the insurer was already paying the bills that were submitted by the medical provider and withdrew payment prior to receiving a peer review claiming that treatment was not reasonable, related, or necessary. As a result of this distinction, the Viles case does not apply to this case. Therefore, United is not required to obtain a medical or peer review report within the thirty days of receipt of medial bills in order to contest a PIP claim on the ground of reasonableness, relatedness, and/or necessity.
Accordingly, this Court reverses the trial court’s decision granting the summary judgment and remands this matter for proceedings consistent with this opinion.
