15 Fla. L. Weekly Supp. 433b
Insurance — Personal injury protection — Summary judgment — Opposing affidavits — In ruling on motion for summary judgment, trial court erred in rejecting peer review obtained more than 30 days after notice of loss as time barred
UNITED AUTOMOBILE INS. CO., Appellant, v. OPEN MRI OF MIAMI DADE, LTD., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 2705 SP 24, 07-117AP. March 17, 2008. An appeal filed from the County Court in and for Miami-Dade County, Darrin P. Gayles, Judge. Counsel: Michael J. Neimand, for Appellant. Jose Iglesias and Mary Sam Pedro-Iglesias, for Appellee.
(Before: LEON FIRTEL, PETER LOPEZ, BARBARA ARECES, JJ.)
(FIRTEL, J.) On March 21, 2003, claimant, Jorge Rivas (claimant), who was insured by United Auto (United), was injured in an accident and obtained treatment from Open MRI. On June 23, 2003, claimant underwent an independent medical examination where an MRI was performed. On November 15, 2005, Open MRI filed a breach of contract for PIP benefits complaint against United. On September 5, 2006, Open MRI filed a motion for summary judgment on the grounds that treatment for claimant was reasonable, related and necessary.
On October 20, 2006, Dr. Hornfeld, a physician selected by United, submitted an affidavit stating that claimant’s treatment, based on an independent medical examination he performed on June 3, 2003 was no longer reasonable, related or necessary. On December 1, 2006, United filed an affidavit and peer review report that was obtained from Dr. Fleisher on March 14, 2004, stating that he agreed with Dr. Hornfeld’s opinion that any treatment after June 3, 2003 was not reasonable, related or necessary.
On January 23, 2004, United issued a cut-off letter advising the suspension of benefits under the licensing chapter for services rendered after January 30, 2004. A hearing on the summary judgment motion was held on December 12, 2006. The trial court granted summary judgment for Open MRI finding that Dr. Fleisher’s peer review was time barred and that the IME done by Dr. Hornfeld on June 3, 2003 was for services rendered after January 30, 2004, and therefore, not considered because it was done prior to the cut-off letter.
The standard of review for summary judgment is de novo, and requires the appellate court to view the evidence in light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). In order to properly analyze summary judgment, the appellate court must determine whether there is a genuine issue of material fact, and whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
In United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001), the Supreme Court held that, under section 627.736(4)(b), an automobile insurer’s failure to pay personal injury protection (PIP) benefits within thirty days after receiving written notice of a covered loss does not forever bar it from contesting the claim; rather, the statutory penalties of interest and attorney fees are the only penalties which can be assessed against an insurer for this “overdue claim.” Accordingly, applied here, the lower court committed error in ruling that the peer review could not be used to establish reasonable proof to contest the medical bills, as it did not have to be conducted within thirty days after June 23, 2004. Furthermore, we find that the lower court’s reliance on United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999) is misplaced. Stated in terms of the certified question it answered in the affirmative, the Viles court found that, in 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, that the 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 insurer to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, necessity or relationship. In other words, Viles stands for the proposition that benefits, once started by an insurer, cannot be withdrawn, reduced or further denied absent a report. Here, factually, United Auto was not seeking to withdraw, reduce or further deny Claimant’s benefits; rather, United Auto denied Claimant’s benefits at the outset, and thus was not required, under section 627.736(7)(a) to obtain a report within thirty days.
It has been consistently held in this circuit that failure to obtain a peer review within 30 days of notice of loss does not bar an insurer from contesting whether the medical bills are reasonable, related or necessary. See United Automobile Ins. Co. v. Context Medical Group a/a/o Jennifer Cordoba, 14 Fla. L. Weekly Supp. 937a (Fla. 11th Cir. Ct. July 24, 2007); United Automobile Ins. Co. v. Kendall South Medical Center a/a/o Nelson Alfaro, 14 Fla. L. Weekly Supp. 934a (Fla. 11th Cir. Ct. July 24, 2007); United Automobile Ins. Co. v. Tate, 14 Fla. L. Weekly Supp. 628a (11th Cir. Ct. May 9, 2007); United Automobile Ins. Co. v. Professional Medical Group, Inc. a/a/o Raquel Gutierrez, 14 Fla. L. Weekly Supp. 624a (Fla. 11th Cir. Ct. May 7, 2007); United Automobile Ins. Co. v. Asclepius Medical a/a/o Nestor Pelaez, 13 Fla. L. Weekly Supp. 425a (Fla. 11th Cir Ct. Feb. 21, 2006). Thus, Dr. Fleisher’s peer review is not time barred, it is valid and presents a genuine issue of material fact. The 30 day period is only a provision for an insurer to avoid interest and attorney fees. It is not used to establish a reasonable proof of a PIP claim. Therefore, the relied upon peer review of Dr. Fleisher was not required to be obtained within 30 days of receipt of the claim. United Auto Ins. Co. v. Rodriquez. 808 So. 2d 82 (Fla. 2001).
As such, we reverse the summary judgment entered for Open MRI and remand this matter back to the trial court to consider the peer review for a factual determination as to whether the services were in fact reasonable, related and necessary.
REVERSED AND REMANDED. (LOPEZ and ARECES, JJ., concur.)
