15 Fla. L. Weekly Supp. 136a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 15 Fla. L. Weekly Supp. 333c
Insurance — Personal injury protection — Summary judgment — Error to fail to consider independent medical examination report which created genuine issue of material fact regarding necessity of treatment — Insurer did not waive right to assert that treatment is not reasonable, related or necessary or that charge was excessive by failing to notify medical provider of intent to dispute claim on that basis — Defects in IME report and affidavit are not sufficient to exclude evidence; insurer should have been given opportunity to correct defects
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. ANTHONY AQUINO, D.C., P.A., a/a/o MARCELINO ESQUILIN, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-10705 CACE 18. L.T. Case No. 06-2277 COCE 54. October 12, 2007. Counsel: Kenneth E. Trent, Fort Lauderdale. Deana A. Holiday, Miami.
OPINION
(JOHN T. LUZZO, J.) THIS CAUSE comes before this Court, sitting in its appellate capacity, upon Appellant’s, United Automobile Insurance Company, (hereafter “UAI”), timely appeal of the trial court’s order granting Appellee’s, Anthony Aquino’s, D.C., P.A., (hereafter “Aquino”) Motion for Summary Judgment. Having considered the briefs of both parties, the record on appeal, applicable law, and being otherwise fully advised in the premises, this Court finds as follows:
Dr. Aquino brought suit against the UAI in Broward County Court on two counts for breach of contract. Dr. Aquino is the treating physician and assignee of benefits under an UAI automobile insurance policy issued to assignor Marcelino Esquilin (hereafter “Esquilin”). Esquilin had an automobile accident in which he sustained injuries on March 21, 2004. (R. 1-7). Esquilin sought and received chiropractic treatment from Aquino Chiropractic, notice of which was sent to UAI.
UAI set a chiropractic independent medical examination (hereafter “IME”) with Ronald Drucker, D.C., who examined Esquilin on June 1, 2004. (R. 84). Dr. Drucker did not forward his IME report to UAI until September 30, 2004 (R. 86-89). During this interim period, Dr. Aquino continued to treat Esquilin until the conclusion of Esquilin’s treatment on September 17, 2004.
Dr. Aquino billed UAI for the treatment of Esquilin from March 31, 2004 to September 17, 2004. UAI has not paid the bill and did not notify the treating physician or the patient of the results of Dr. Drucker’s IME report. A demand letter was sent to UAI pursuant to Fla. Stat. 627.736(4)(b); UAI did not respond. Dr. Aquino filed suit and sought summary judgment in the matter. The trial court granted summary judgment in favor of the Appellee on June 22, 2006 and Final judgment on June 28, 2006. Appellant filed a notice of appeal on July 20, 2006.
The appellate standard of review pertaining to a trial court order granting a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment may be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at130 [citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)].
Appellant argues that the trial court erred in failing to consider the IME report which would have created a genuine issue of material fact as to the necessity of treatment provided by the Appellee and that the reversal of the underlying judgment requires reversal of the statutory fee awarded in its favor. Appellee counters that UAI tacitly authorized treatment and therefore could not withdraw treatment without notice pursuant to § 627.736(7)(a) Fla. Stat.; that UAI could not pass the “risk of loss” from itself to its insured without prior notice; and that at the time summary judgment was entered UAI had no competent evidence on file with which to oppose Dr. Aquino’s summary judgment.
As to Appellant’s first issue, there exists a genuine issue of fact as to whether the treatment was medically necessary. Florida Statute § 627.736(4)(a) sets forth a very specific process for payment and denial of payment of medical benefits under the Florida No-Fault Law. The law first requires that the medical provider notify the insurer, with reasonable proof, of the loss and the amount of expenses or loss incurred as a result of the insured’s injuries. Upon receipt of such notice the insurer is required to pay the benefit to the provider or provide an itemized list of the charges it wishes to reduce, omit, or decline payment of. In such cases, the insurer is required to provide reasonable proof that it is not responsible for payment of the benefit. The insurer’s failure to make said payment or to provide the reasonable proof as to why payment should not be made results in the payment being considered “overdue” and subject to the interest penalty outlined in the statute. Fla. Stat. 627.736(4)(b),(c); United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (2002).
Although the trial court correctly determined that UAI did not comply with the statute such noncompliance does not preclude UAI from asserting 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).” Fla. Stat. 627.736(4)(b). The statute permits the insurer to assert this claim at “any time” and this right is not waived by the insurer because it failed to notify the medical provider of its intentions. Therefore, if properly admitted into evidence for the summary judgment hearing pursuant to Fla. R. Civ. P. 1.510(e) or (f), the trial court should have reviewed Dr. Drucker’s IME report prior to its finding for summary judgment.
Appellee asserts that Dr. Drucker’s affidavit and IME report have several legal deficiencies that prevent them from being entered into evidence. These deficiencies are not enough to exclude this evidence from consideration for summary judgment purposes. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Charlonne v. Rothenthal, 642 So.2d 632 (Fla. 3d DCA 1994). The trial court should have given the Appellee an opportunity to correct those defects. Id.
Based upon the foregoing, the trial court’s order granting Summary Judgment is accordingly REVERSED and REMANDED for further proceedings consistent herewith.
