14 Fla. L. Weekly Supp. 934a
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. KENDALL SOUTH MEDICAL CENTER a/a/o NELSON ALFARO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-167 AP and 06-549 AP. L.C. Case No. 03-005190 SP 25. July 24, 2007. An Appeal from the County Court for Miami-Dade County. Counsel: June G. Hoffman, Fowler, White, Burnett, P.A., for appellant. Christian Carrazana, Panter, Panter & Sam Pedro, P.A. for appellee.
(Before BARBARA ARECES, PETER ADRIEN, and SPENCER EIG, JJ.)
(PER CURIAM.) On September 7, 2002, Nelson Alfaro was involved in an automobile accident and sustained an injury. Mr. Alfaro was insured with personal injury protection benefits with United Automobile Insurance Company (“United”). Mr. Alfaro received treatment from Kendall South Medical Center (“Kendall South”) and executed an assignment of benefits. Kendall South submitted bills in the amount of $3,494.00 to United. United denied the payment of benefits to Kendall South. On May 13, 2003, Kendall South filed a complaint against United for Breach of Contract for nonpayment of PIP benefits. United denied the allegations in the complaint and raised three affirmative defenses.
Kendall South filed a Motion for Summary Judgment on the grounds that the treatment provided was reasonable, related, and necessary. Kendall South filed the affidavit of Wilfredo Falcon, M.D. which stated that based on his review of the medical records it was his professional opinion that the treatment received by Mr. Alfaro was medically necessary and related to the automobile accident. United filed the affidavit of Peter Millheiser, M.D. which related his opinion that some services provided to Mr. Alfaro were unreasonable, unnecessary, and unrelated to the accident. The trial court denied Kendall South’s Motion for Summary Judgment.
Kendall South moved for reconsideration and claimed that certain points of law were overlooked by the trial court. Kendall South claimed that United could not deny the benefits based on the defense that the treatment was not reasonable, related, and necessary because Dr. Millheiser’s report was not obtained before the denial of benefits which was required under section 627.736(7)(a), Florida Statutes (2006). Furthermore, Kendall South cited to the Third District Court of Appeal decision in United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998). The trial judge granted partial summary judgment with regard to late notice requirements but denied summary judgment with regard to the peer review report.
Kendall South filed a renewed motion for summary judgment and essentially made the same arguments concerning the peer review report. United filed a memorandum in opposition to the motion for summary judgment distinguishing the Viles case from the facts in this case. The trial court granted Kendall South’s Renewed Motion for Final Summary Judgment on the issue of reasonableness, relatedness, and necessity of Mr. Alfaro’s treatment. As a result, United filed this appeal.
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 United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (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 to section 627.736(7)(a), Florida Statutes (1997) 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, necessity or relation. (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. at87. 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. The facts differ in this case than those of Viles. In Viles, the insurer was paying the benefits that were submitted by the medical provider and withdrew payment prior to receiving a peer review claiming that treatment was not reasonable, necessary or related. 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.
The trial court erred in the order granting summary judgment in favor of Kendall South. An insurer is not required to obtain a medical or peer review report within the thirty days of receipt of medical bills in order to contest a PIP claim on the ground of reasonableness, relatedness, and/or necessity. Accordingly, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.
