15 Fla. L. Weekly Supp. 432a
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 thirty days after medical bills became due
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CLAUDIA MELCHIORRE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-526 AP & 07-109 AP. L.T. Case No. 05-2782 CC 26. February 22, 2008. An Appeal from the County Court for Miami-Dade County. Counsel: Lara J. Edelstein, Office of the General Counsel, for Appellant. Paul Morris, Law Offices of Paul Morris, P.A.; and Jonathan R. Friedland, Friedland & Brown, P.A.; and David F. Baron, Law Office of David F. Baron, P.A., for Appellee.
(Before WILLIAM THOMAS, JOHN SCHLESINGER, and MARK KING LEBAN, JJ. )
(SCHLESINGER, J.) This is an appeal from a final summary judgment entered by the trial court in favor of the Appellee, Claudia Melchiorre (“Melchiorre”) on the issue of reasonableness, relatedness and necessity (“RRN”) of her medical treatment. Appellant, United Automobile Insurance Company (“United Auto”), denied payment for personal injury protection (“PIP”) benefits Melchiorre claimed from an accident which occurred on August 27, 2003. On November 24, 2004, a peer review of Melchiorre’s medical records was conducted by Peter Millheiser, M.D. Melchiorre filed suit on May 26, 2005 to recover PIP benefits.
On September 19, 2006, Melchiorre filed a Motion to Strike Peer Review arguing that it was untimely as it was not performed within 30 days of United Auto’s receipt of notice of loss. The trial court orally refused to consider the peer review based upon United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998), interpreting that withdrawal of benefits was the same as a denial of benefits. Therefore, United Auto was required to obtain a report from a physician prior to the medical bills becoming due. The trial court entered a written order granting Melchiorre’s motion for summary judgment on the issue of RRN without any further findings. Subsequently, the trial court entered a Final Judgment for Attorney’s Fees and Costs in favor of Melchiorre. United Auto filed the instant consolidated appeals challenging the granting of summary judgment and the award of attorney’s fees and costs.
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 entry of the final summary judgment below. We find that the trial court applied the incorrect law by relying on Viles in refusing to consider the peer review because it was obtained more than 30 days after the medical bills became due. In Viles, the Third District Court of Appeal determined that in a claim for PIP benefits it is a condition precedent, pursuant section 627.736(7)(a), Fla. Stat. (1998), that an insurer who has withdrawn, reduced benefits or denied further benefits must first obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not RRN in order for the insurer to defend a suit for reduction, withdrawal or denial of further payments on the grounds of RRN. (Emphasis added). Thus, Viles applies to those cases where the insurer was already paying the bills that were submitted by the medical provider and withdrew payment prior to receiving a peer review claiming that treatment was not RRN. In this case, no payments on any part of the medical bills submitted were made, thereby effectively denying benefits. Hence, the trial court’s reliance on Viles was misplaced as that case does not apply to the facts here.
It is well settled that no requirement exists in the law that a peer review report must be obtained within 30 days of an insurer’s receipt of notice of a PIP claim in order to contest the RRN of the medical bills. See §627.736(4)(b), Fla. Stat. (2003); United Automobile Ins. Co. v. Rodriquez, 808 So. 2d 82 (Fla. 2001); 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).
We also reverse the lower court’s order awarding Melchiorre 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. Barister, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999). Melchiorre 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 the 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, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED. (THOMAS and LEBAN, JJ., concur.)
