15 Fla. L. Weekly Supp. 320a
NOT FINAL VERSION OF OPINION
Subsequent Changes at FLWSUPP 165AMADO
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review — Error to refuse to consider peer review because it was obtained more than 30 days after medical bills became due — Remand for determination of legal and factual validity of peer review affidavit — Disclosure and acknowledgment form — Statute requiring D&A form is applicable to all services rendered after effective date of statute, regardless of fact that policy predates statute — Insurer is estopped from asserting defense of defective D&A form where insurer acknowledges that it received medical records and HCFA form as attachments to D&A form that left blank lines provided for setting forth services rendered; after receiving form, insurer dealt with insured as if there were no problems with form and required her to submit to examination under oath and independent medical examination; and insurer did not send explanation of benefits denying claim based on insufficient form
Cert. denied 4-9-09 (United Auto Ins. Co. v. Amador, Case No. 3D09-792)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ADRIANA AMADOR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-232 AP & 06-474 AP. L.T. Case No. 05-6199 SP 25. February 15, 2008. An Appeal from entry of final summary judgment by the Honorable Lawrence King, Dade County Court Judge. Counsel: June Galkoski Hoffman, Fowler, White, and Burnett, P.A., for Appellant. Virginia M. Best, Lopez & Best, and Carlos Lopez-Albear, Carlos Lopez-Albear, P.A., for Appellee.
(Before WILLIAM THOMAS, JOHN SCHLESINGER, and MARK KING LEBAN, JJ.)
(THOMAS, J.) This is an appeal from a final summary judgment entered by the trial court in favor of the Appellee, Adriana Amador (“Amador”), on the issue of reasonableness, relatedness and necessity (“RRN”) of her medical treatment from denial of personal injury protection (“PIP”) benefits by Appellant, United Automobile Insurance Company (“United Auto”). Additionally, United Auto appeals the trial court’s order striking its second affirmative defense.
Amador was insured for PIP benefits by United Auto when she was involved in an automobile accident on June 12, 2004. On June 16, 2004, Amador received medical services from South Medical. At the time of this initial treatment, Amador signed a Standard Disclosure and Acknowledge Form (“D & A Form”) promulgated by the State pursuant to §627.736(5)(e), Fla. Stat. (2003). The original D & A Form, which left blank the provided lines for setting forth services rendered, along with HCFA forms and medical reports were sent to United Auto by certified mail. According to the deposition of Sandra Canto, a member of United Auto’s PIP litigation department, those documents were received on July 14, 2004. Ms. Canto indicated that the D & A Form was incomplete. She acknowledged that nothing in the claim file indicated United Auto notified either South Medical or Amador of any problem with the D & A Form.
United Auto requested Amador to appear for an examination under oath (“EUO”), which was taken on August 2, 2004. On August 9, 2004, again at the request of United Auto, Amador appeared for an independent medical examination (“IME”), which was performed by Dr. Vicente G. Lopez, M.D. On August 27, 2004, United Auto sent a letter to Amador’s attorney stating that benefits were being suspended for any services rendered after August 9, 2004, based upon the IME of Dr. Lopez who opined that any further medical treatment would not be RRN. No payment was ever received on any of the medical bills submitted prior to the cut off date contained in United Auto’s letter.
On April 27, 2005, Amador filed suit to recover PIP benefits. United Auto answered on June 29, 2005, asserting as affirmative defenses: 1) the medical services rendered were not RRN per the medical opinion of Dr. Lopez, 2) failure to comply with all conditions precedent to filing suit in that Amador violated §627.736(5)(e) by improperly filling out the D & A Form, and 3) the subject policy included a $2,000 deductible for which United Auto was not responsible.
Amador moved to strike United Auto’s second affirmative defense. The trial court entered two separate Orders on this issue. The first dated November 7, 2005 states:
The Court finds that the Disclosure Acknowledgement Form received by Defendant with Plaintiff’s initial medical expenses is substantially compliant. Thus Defendant’s second affirmative defense is stricken with prejudice.
The second Order dated January 27, 2006, provided:
Granted, the Court finds that Plaintiff’s insurance policy was issued prior to the legal requirement for the use of a state approved disclosure and acknowledgment form and further finds that the disclosure and acknowledge form executed by plaintiff is substantially compliant with the requirements set forth in 627.736(5)(e).
On April 26, 2006, Amador moved for final summary judgment as to RRN of her medical expenses. The motion was heard on May 17, 2006. At the hearing United Auto, in opposing summary judgment, relied on a peer review conducted by Dr. David B. Goldberg, M.D. conducted on August 1, 2005. The trial court entered an order granting final judgment in favor of Amador finding: 1) United Auto never forwarded the medical bills to a licensed physician for determination of RRN prior to the “withdrawal of PIP benefits”; 2) the peer review submitted by United Auto had been conducted more than a year after the bills became due; and 3) according to Viles1obtaining a valid physician’s report was a condition precedent to “reduction withdrawal, or denial of payments on the grounds of reasonableness, necessity, or relatedness.” United Auto filed the instant appeal.
The trial court subsequently awarded attorney’s fees and costs to Amador’s attorney which United Auto also appealed. Each appeal has been consolidated before this appellate court.
The standard of review applicable to the grant of a summary judgment is de novo and requires the appellate court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) 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).
We reverse the order granting summary judgment in favor Amador as the trial court applied the incorrect law in relying on Viles and in ruling that Dr. Goldberg’s peer review could not be considered as it was obtained by United Auto more than 30 days after the bills became due.
In Viles, the Third District Court of Appeal determined that in any claim for PIP benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, it is a condition precedent pursuant §627.736(7)(a), Fla. Stat. (1998), that an 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 insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, relatedness or necessity. (Emphasis added). Thus, Viles applies to cases where the insurer is already making payment on bills submitted by the medical provider and subsequently the insurer withdraws payment prior to receiving a medical report claiming that treatment was not RRN. United Auto made no payment on any of the medical bills submitted thereby effectively denying benefits. Hence, the trial court’s reliance on Viles was misplaced as that case does not apply to the facts here.
The Florida Supreme Court has determined that Florida law is devoid of any requirement that an insurance company must obtain a peer review within 30 days from the date of the notice of loss in order to establish or contest the RRN of a PIP claim. United Automobile Ins. Co. v. Rodriquez, 808 So. 2d 82 (Fla. 2001). The 30 day period is only a provision for an insurer to avoid interest and attorney fees, not to establish reasonable proof of a PIP claim. Id. Additionally, §627.736(4)(b), Fla. Stat. (2003), specifically states in pertinent part:
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. . . Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
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 RRN of medical bills. 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, it was error for the trial court to refuse to consider the peer review because it was obtained more than 30 days after the medical bills became due.
There remains a question as to whether Dr. Goldberg’s peer review affidavit was legally and factually sufficient to create a genuine issue of material fact. This court is unable to determine from review of the record and the trial court’s summary judgment order whether the lower court analyzed Dr. Goldberg’s peer review affidavit for legal sufficiency. If it failed to meet the required legal standards, then the trial court’s decision on summary judgment is appropriate. Therefore, we remand the case to the trial court in order to conduct necessary proceedings and make a determination as to the legal and factual validity of Dr. Goldberg’s affidavit. This court retains jurisdiction on that issue upon proper motion for further review thereafter.
We affirm the trial court’s ruling striking United Auto’s second affirmative defense which comes to this court clothed with a presumption of correctness. It is United Auto’s burden to demonstrate error.
There is no dispute that the D & A Form was left blank on provided lines for setting forth what services were actually rendered. The trial court’s order dated January 27, 2006, found Amador was not required to use the approved D & A Form as her PIP policy was issued prior to the effective date of the statute. Amador’s policy was purchased and coverage went into effect in August 2003. The use of the D & A Form first became a requirement on October 1, 2003, the effective date of §627.736(5)(e), Fla. Stat. The Legislature specifically provided that the statute shall apply to treatment and services occurring on or after October 1, 2003. Therefore, the application of the statute is dependent on the date of the treatment and services not when the policy was issued. See Progressive Express Ins. Co. v. Louis R. Menendez, Jr. and Cathy Menendez, __ So. 2d __, 2007 WL 4245385 (Fla. 3d DCA), 32 Fla. L. Weekly D2891a. As Amador’s treatment and services began on June 16, 2004, well after the effective date of the statute, she was required to use the approved D & A Form.
United Auto makes numerous arguments that the blank space on the D & A Form, despite the attachment of the medical records and HCFA Form, constituted improper notice of a covered loss which relieves it of any obligation to provide PIP benefits to Amador. We are not persuaded by any of these arguments as the end result would be to allow United Auto to escape liability by remaining silent as to technical defect. This would be an especially unjust result in this case where United Auto acknowledges that it received as attachments to the D & A Form the medical records and the HCFA Form. After receiving these documents, United Auto proceeded to deal with Amador as if there were no problems, requiring her to submit to both an EUO and an IME. Then based on the IME, United Auto sent Amador a letter with a cut off date for further benefits.
In this case, United Auto did not comply with its own salutatory duty. Florida Statute §627.736(4)(b) requires that:
When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in the future.
Clearly, United Auto was required by the statute to explain why they were denying Amador’s claim and to provide the information that it was taking that position due to the incomplete D & A Form. There is nothing in the record to indicate, nor does United Auto assert in any pleading, that this required EOB was ever sent to South Medical or Amador. The provision of an EOB by United Auto would have afforded Amador the opportunity of correct any alleged defects.
We find that on these facts United Auto is estopped from asserting any defect in the D & A Form. Although, the trial court based its decision on other reasoning, the evidence supports this alternative theory and the trial court’s ruling is affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1980). The doctrine of estoppel may be used to prevent a forfeiture of insurance coverage. United Automobile Ins. Co. v. Brooks, 837 So. 2d 423 (Fla. 3d DCA 2002). To allow a denial of coverage on an incomplete D & A Form would result in a forfeiture of Amador’s PIP benefits which we find is an unfair result.
We also reverse the lower court’s order awarding Amador attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002); Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999). Amador will be entitled to attorney’s fees and costs pursuant to §627.428, Fla. Stat. provided she prevails on remand.
Additionally, Appellee’s Motion for Attorney’s Fees is DENIED. Since Appellee is not prevailing party in this appeal, attorney’s fees are not attainable. §627.428(1). Fla. Stat.
FOR THESE REASONS, the order granting summary judgment in favor of Appellee is REVERSED in so far as it was predicated upon the peer review being obtained after benefits became due; this court RETAINS JURISDICTION to conduct further review regarding the legal sufficiency of the peer review affidavit; the trial court’s order striking United Auto’s second affirmative defense is AFFIRMED; and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (SCHLESINGER and LEBAN, JJ., concur.)
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1United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998).
