14 Fla. L. Weekly Supp. 539a
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary treatment — Failure to obtain reasonable proof within 30 days — Insurer’s failure to obtain medical or peer review report within 30 days did not preclude insurer from contesting reasonableness, relatedness or necessity of treatment — Error to grant summary judgment for medical provider because peer review report was submitted more than 30 days after claim was filed
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o VIVIAN FIGUEREDO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-203 AP & 06-256 AP (Consolidated). L.C. Case No. 03-6478 SP 25 (03). April 17, 2007. On appeal from a decision of the County Court, Miami-Dade County. Counsel: June Galkoski Hoffman, Fowler White Burnett, P.A., for Appellant. Mari Sampedro-Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before CINDY S. LEDERMAN, ANTONIO MARIN, and MARISA TINKLER MENDEZ, JJ.)
(LEDERMAN, J.) Vivian Figueredo, an insured of United Automobile Insurance Company (“United Auto”), was involved in an automobile accident on February 8, 2003. On February 14, 2003, she sought medical attention from Professional Medical Group (“Professional”) for her injuries. Ms. Figueredo received medical services from Professional from February 10 through May 29, 2003, with expenses totaling $4,750.00. When United Auto did not pay the bills submitted by Professional, the medical provider filed a breach of contract suit.
United Auto denied liability, contesting the reasonableness, relatedness, and necessity of Professional’s bills for physical therapy (which eventually was the only remaining issue for trial). On October 13, 2004, Professional filed a motion for partial summary judgment on the reasonableness, relation, and medical necessity of charges totaling $9,820.00. In opposition, United Auto filed a peer review report and accompanying affidavit, which concluded that the treatment provided to Ms. Figueredo was excessive and would not provide further benefit. The trial court denied the motion for summary judgment without prejudice.
Professional filed a renewed motion for summary judgment on the ground that United Auto was precluded from contesting liability because it did not obtain the peer review within 30 days of receipt of the bills, citing §627.736(4), Fla. Stat. (2003) and United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998). The trial court agreed and ruled that Professional was entitled to summary judgment. A final judgment was entered for Professional in the amount of $6,857.31 on May 8, 2006. Subsequently, Professional was awarded attorney’s fees and costs in the amount of $31,382.71. United appealed both decisions, and the two appeals were consolidated.
We reverse because the trial court erred in ruling that an insurer’s failure to obtain a medical or peer review report within thirty days precludes the insurer from contesting the reasonableness, relatedness, and/or necessity of the bills. In §627.736(4)(b), Fla. Stat. (2003), the statute sets forth the requirement that personal injury protection insurance benefits shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss unless the insurer has reasonable proof to establish that the insurer is not responsible for the payment. However, the statute goes on to read that:
“This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be at any time, including the payment of the claim or after the 30-day period for payment set forth in this paragraph”.
Moreover, the Florida Supreme Court held that the insurer’s failure to pay PIP benefits within 30 days after receiving written notice of a covered loss does not forever bar it from contesting the claim. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001). Rather, the statutory penalties of ten percent interest and attorney’s fees are the only penalties for an overdue claim. See also Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997) (holding the insurer liable for statutory penalties where the insurer paid PIP benefits more than 30 days after the receipt of the claim); Jones v. State Farm Mutual Auto. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997) (holding the insurer liable for statutory penalties but noting that the insurer can still contest the claim where the insurer failed to pay PIP benefits within 30 days of receipt of the claim) and, AIU Ins. Co. v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000) (holding that failure to pay PIP benefits within 30 days subjects an insurer to statutory penalties but “does not deprive the insurer of its right to contest payment”). Rodriguez, at 87. As such, the trial court erred in granting summary judgment for Professional because United Auto’s peer review report was submitted more than 30 days after the claim was filed.
This case is reversed and remanded to the trial court for proceedings consistent with this opinion. This Court denies Appellee’s motion for appellate attorney’s fees. (Judges ANTONIO MARIN and MARISA TINKLER MENDEZ concur.)
