14 Fla. L. Weekly Supp. 536b

Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary treatment — Failure to obtain reasonable proof within 30 days — Although not obtained within 30 days of notice of loss, peer review and independent medical examination are reasonable proof that treatment was not reasonable, related and necessary, and trial court erred in disregarding physicians’ affidavits and entering summary judgment in favor of medical provider — Affidavits did not require verification to be considered by court

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MIAMI MEDICAL GROUP, INC., a/a/o ILIANA DE LA LUZ PARDO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-035 AP & 06-046 AP. L.T. Case No. 2003-014204-SP 25. April 17, 2007. On Appeal from the County Court for Miami-Dade County, Andrew Hague, Judge. Counsel: Michael J. Neimand, for Appellant. Jose R. Iglesia, for Appellee.

(Before COHEN, VENZER, and ARECES, JJ.)

(COHEN, Judge.) This is an appeal of a summary judgment order entered in favor of Miami Medical Group, Inc., (“Miami Medical”) as assignee of Iliana de La Luz Pardo against United Automobile Insurance Company (“United”). The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).

On September 26, 2002, Iliana de la Luz Pardo, Assignee, was involved in a car accident. On April 28, 2003, United received the notice of loss from Miami Medical. Miami Medical, filed suit on November 14, 2003 against United for breach of contract based upon the nonpayment of personal injury protection benefits (“PIP”) for the treatment given by Miami Medical to Iliana de la Luz Pardo. United denied coverage based on the fact that the treatment was not reasonable and necessary. The denial was based on Dr. Millheiser’s peer review and Dr. Joel Kaplan’s IME. The peer review and the IME, upon which the denial was based, were obtained and/or conducted outside of the time frame allowed by statute. Miami Medical contends that since United failed to comply with the procedural mandates of Fla. Stat. § 627.736(4) (2003) and § 627.736(7)(a) (2003) — because United failed to obtain reasonable proof that the treatment was not reasonable, related, and necessary within thirty days as mandated by the statute — United’s peer review should not be considered. The court granted the Motion for Summary Judgment and entered final judgment awarding attorney fees to Miami Medical. United is appealing the summary judgment and the award of attorney fees.

Personal Injury Protection is designed to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000). To further this goal, the legislature enacted provisions in Fla. Stat. § 627.736(4), which impose reasonable penalties on insurers who pay late. See, Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 891-892 (Fla. 2003) citing United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 86 (Fla. 2001); January v. State Farm Mutual Ins. Co., 838 So. 2d 604, 607 (Fla. 5th DCA 2003); USAA Casualty Ins. Co. v. Shelton, 932 So. 2d 605 (Fla. 2d DCA 2006). PIP benefits are triggered if the treatment is reasonable, necessary, and related to a motor vehicle accident. See, Warren v. State Farm Mutual Automobile Ins. Co., 899 So. 2d 1090, 1094 (Fla. 2005) citing Rodriguez, 808 So. 2d at 85. PIP insurance payments are overdue if not paid within thirty days after the provider furnishes the insurer with written notice of the loss and the amount of the loss. Fla. Stat. § 627.736(4) (2003). The Florida Supreme Court has held that an insurer’s failure to pay PIP benefits within thirty days after receiving the covered loss does not forever bar the insurer from contesting the claim. See United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001). Rather, an insurer is given thirty days to investigate a claim and pay the claim or discover facts that warrant a refusal to pay. January v. State Farm Mutual Ins. Co., 838 So. 2d 604, 607 (Fla. 5th DCA 2003), citing Rodriguez, 808 So. 2d at 86; State Farm Mutual Automobile Ins. Co. v. Nichols, 932 So. 2d 1067, 1082 (Fla. 2006). If the insurer does not do so within 30 days, then the claim is overdue and statutory penalties for failing to pay the claim timely are applicable if a duty to pay the claim is proven. Id.

However, even where written notice is furnished to the insurer as provided by the statute, a payment is not deemed overdue “when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Moreover, the insurer is not barred from contesting the claim just because a payment becomes overdue. If the insurer is ultimately found liable for a contested claim, then the statutory penalties of interest and attorney’s fees would be applicable. See, § 627.736(4)(c), (8), Fla. Stat. (2001); Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 891-892 (Fla. 2003) citing Rodriguez, 808 So. 2d at 86.

Moreover, a physician’s report is reasonable proof that the treatment was not reasonable, related, and necessary. United Automobile Ins. Co. v. Rodriguez, supra at 87. United submitted reasonable proof by obtaining the peer reviews of Dr. Milheiser and Dr. Kaplan pursuant to § 627.736(7)(a), Fla. Stat. The affidavits submitted by United did not require verification in order to be considered by the Court. Affidavits are sufficient.¹ “A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person, such report is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” § 627.736(7)(a), Fla. Stat. (2003). The affidavits of Dr. Milheiser and Dr. Kaplan, and the reports attached, were properly sworn to by the physicians in the presence of a notary.

Accordingly, this case is hereby REVERSED and REMANDED to the trial court. Miami Medical’s motion for appellate attorney fees is denied.

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¹In verification, the party declares that the alleged facts are true, which is only necessary when a rule or statute requires the pleading to be verified. Fla. R. Civ. P. 1.030 (2003). An affidavit is a statement in writing under an oath administered by a duly authorized person. Youngker v. State, 215 So. 2d 318 (Fla. 4th DCA 1968).