15 Fla. L. Weekly Supp. 567a
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to strike affidavit of physician who conducted physical medical examination of insured and peer review where affidavit complied with requirements of rule 1.510(e) — Although medical records referenced in affidavit were not attached thereto, records were already filed with clerk of courts and references to records in affidavit were so explicit that there was no question as to documents identified — Requirement that insurer obtain valid medical report before withdrawing, reducing or denying payment of further benefits does not extend to instance in which insurer refuses payment of benefits — Error to grant motion for summary judgment where there exists genuine issue of material fact as to whether treatment was reasonable, related and necessary
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. QUALITY MEDICAL GROUP, INC., a/a/o Briceida Barcenas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-041 AP, 06-525 AP. L.T. Case No. 04-2043 CC 26. March 26, 2008. On Appeal from the County Court, Miami-Dade County, Saenz, Nuria, J. Counsel: Michael J. Neimand and Laura J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Jose Iglesia and Mari Sampedro-Iglesia, for Appellee.
(Before SCHWARTZ, MURPHY, and THORNTON, JJ.)
(MURPHY, Judge.) This is an appeal of a summary judgment order entered by the county court in Miami-Dade County in favor of the Appellee, Quality Medical Group, Inc., a/a/o Breceida Barcena (Quality Medical) on the issue of reasonableness, relatedness and necessity (RRN). Quality Medical sought Personal Injury Protection (PIP) benefits from United Automobile Insurance Company (United Auto) for medical treatment rendered to the insured. However, United Auto did not make any payments and Quality Medical filed suit on March 24, 2004.
Quality Medical filed a Motion For Summary Judgment as to Liability and/or Reasonableness, Relatedness and Medical Necessity. United Auto filed the affidavit of Peter Millheiser, M.D., in opposition to the motion. Dr. Millheiser conducted a peer review which was not filed with the clerk of court. However, in his affidavit, Dr. Millheiser listed the documents that he reviewed and for which his opinion was predicated. Additionally, Dr. Millheiser listed his medical credentials. He further stated that after reviewing the documents it was his opinion that the medical treatment was not reasonable, related or necessary. The trial court struck the affidavit finding that it did not comply with the procedural provisions of Fla. R. Civ. P. 1.510(e). A written Order granting Quality Medical’s motion for summary judgment on the issue of RRN was entered. In that Order, the trial court made further findings that Dr. Millheiser’s affidavit did not establish the date he made his opinion; that the affidavit was outside the thirty (30) days; and that United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) was applicable. Thereafter, the trial court entered a Final Judgment for Attorney’s Fees and Costs in favor of Quality Medical. United Auto filed the instant appeal which challenges the granting of summary judgment and the award of attorney’s fees and costs.
The standard of review of a lower court’s summary judgment order is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). In reviewing the lower court’s order on summary judgment, this Appellate Court must apply the two-prong test found in Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000). First, this Court must determine whether there is a genuine issue of material fact. Id. Second, it must determine whether the trial court applied the correct rule of law. Id.
This Court will address the second prong first — did the trial court apply the correct rule of law. A reading of the plain language of Fla. R. Civ. P. 1.510(e) when applied to United Auto’s witness’s affidavit shows that:
a) The affidavit was based on the personal knowledge of the witness. Dr. Millheiser conducted a physical examination and reviewed the medical records. Certainly he had personal knowledge of the facts of this matter.
b) The affidavit set forth such facts as would be admissible in evidence. Dr. Millheiser testified in his affidavit that in his professional opinion the medical treatment was not reasonable, related or necessary. As an expert witness, Dr. Millheiser’s opinion testimony would be admissible.
c) The witness must be competent to testify to the matters stated therein. Dr. Millheiser listed his medical credentials. As such he showed affirmatively that he is competent to testify to the matters stated therein.
Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958) addressed the issue of the attachment of documents. The Crovella court had before it for analysis Fla. R. Civ. P. 1.36(e) which has been replaced by Fla. R. Civ. P. 1.510(e). The rule requires that sworn or certified copies of all papers referred to in an affidavit “shall” be attached or served therewith. Under Crovella, documents are not required to be attached to the affidavit when they are already a part of the court’s record and references to them are so explicit that there is no question as to their identity. Id. Just as in Crovella, the documents that Dr. Millheiser referenced in his affidavit were already filed with the clerk of courts by Quality Medical. Additionally, Dr. Millheiser’s references to those documents in his affidavit were so explicit that there is no question as to the documents identified. As such, Dr. Millheiser was not required to attach the documents to his affidavit in opposition to summary judgment.
We now address the issue of whether there is a genuine issue of material fact.
Quality Medical argued that United Auto has a fiduciary duty to its insured, and breached this duty by not obtaining a valid medical report before it refused to pay the PIP claim on the basis that it was not reasonable, related or necessary. Additionally, the trial court entered summary judgment based on Viles.
We reverse the order of summary judgment entered below. We find that the trial court misapplied the law by relying on Viles. In Viles, the Third District Court of Appeal interpreted § 627.736(7)(a), Fla. Stat. (1998). That court concluded that subsection (7)(a) applied when an insurer withdraws, reduces benefits or denies further benefits. It did not address whether subsection (7)(a) applies when an insurer makes no payment — which is the issue that is presented to this Court. We do not extend Viles to include the refusal of payment of PIP benefits by an insurer.
This Court makes a finding that a genuine issue of material fact exists as to whether the medical treatment received by the insured was reasonable, related and necessary.
For these reasons, the order granting summary judgment in favor of the Appellee is REVERSED. Additionally, the Final Judgment awarding attorney’s fees and costs to the Appellee is REVERSED. Appellee is not a prevailing party pursuant to § 627.428(1), Fla. Stat. (2006). Quality Medical will be entitled to attorney fees and costs, provided it prevails on remand. The cause is REMANDED to the trial court for further proceedings consistent with this opinion. (SCHWARTZ AND THORNTON, JJ. concur.)
