15 Fla. L. Weekly Supp. 319a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Evidence — Peer review conducted more than 30 days after receipt of claim — Where insurer did not withdraw payment but denied claim from outset, insurer did not forfeit ability to contest payment by failure to obtain reasonable proof within 30 days of receipt of claim, and trial court erred in refusing to consider peer review report not prepared within 30-day period — Affidavit — Sufficiency — Where peer review report attached to affidavit detailed the medical records reviewed, and the medical records were filed in court record, affidavit was not insufficient for failure to attach referenced records — No merit to claim that affidavit was unsworn — Although peer review states that it is based on best of doctor’s knowledge, attached affidavit indicated that information in peer review was based on doctor’s personal knowledge, and this rebutted claim that peer review was not based on personal knowledge — No merit to argument that peer review is invalid because it was not based on physical examination of insured by peer review doctor — Statute authorizes report based on review of examination and treatment records and does not require separate physical exam — Summary judgment in favor of medical provider reversed and remanded
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. STAND-UP MRI OF MIAMI, P.A., A/A/O IDANIA MARCOS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-454 AP. L.C. Case No. 05-2494 SP(26). February 1, 2008. On appeal from the County Court, Miami-Dade County, Sarduy, George A., Judge. Counsel: Lara J. Edelstein and Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Dean A. Mitchell, for Appellee.
(Before ARECES, Barbara; THOMAS, William; and EIG, Spencer, JJ.)
(ARECES, J.) This is an appeal of a summary judgment order entered by the County Court in Miami-Dade County. The Appellee, Stand-Up MRI of Miami, P.A., a/a/o Idania Marcos (“Stand-Up MRI”), filed a breach of contract suit against the Appellant, United Automobile Insurance Company (“United Auto”), for failure to submit payment on an MRI bill due to a Personal Injury Protection (“PIP”) claim. Following its submission of its Answer and Affirmative Defenses, United Auto filed an affidavit and peer review report of Dr. Marvin Merrit, D.C. In response, Stand-Up MRI propounded its Motion to Strike the Affidavit and Peer Review of Marvin J. Merrit, D.C. In its motion, Stand-Up MRI asserted that the peer review was untimely, since it was not filed within 30 days of the medical claim; and that the review was not valid, since it was not based on a physical exam.1
Stand-Up MRI subsequently filed a Motion for Final Summary Judgment. In its motion, Stand-Up MRI claimed that United Auto was precluded from defending any issue as to the reasonableness, relatedness and necessity of the medical bills. In support of its motion, Stand-Up MRI asserted that United Auto failed to provide a medical report within 30 days of its notice of claim, and failed to conduct a physical exam of the assignor, Ms. Marcos.
The trial court entered an Order Granting Stand-Up MRI’s Final Summary Judgment Motion. The reasoning used by the trial court is that United Auto’s peer review signed by Dr. Merrit failed to comply with Section 627.736(7)(a), Florida Statute (2006) in that it was not obtained within 30 days of Stand-Up MRI’s first written notice of claim for medical bills. As a result of the trial court’s decision, this appeal ensued.
On appeal, United Auto contends that the trial court misapplied the law in placing its reliance on United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) and Progressive Express Insurance Company v. Quality Diagnostics, Inc. a/a/o Dora Batista, 13 Fla. L. Weekly Supp. 1152a (Fla. 11th Cir. Ct. March 28, 2006); and erred in its holding that, pursuant to Section 627.736(7)(a), Florida Statutes, a peer review/medical report was required within 30 days of the insurer’s first written notice of a medical claim, in order to refute the reasonableness, relatedness and necessity of the medical bills.
In opposition, Stand-Up MRI contends that the trial court’s decision should be upheld because:
1) The affidavit of Dr. Merrit is legally insufficient and therefore does not constitute competent, admissible evidence, pursuant to Rule 1.510(e), Fla. R. Civ. P.;
2) The peer review report is not a valid report, pursuant to Section 627.736(7)(a), Florida Statutes;
3) United Auto did not have “reasonable proof” of its non-responsibility within 30 days, pursuant to Section 627.736(4)(a), Florida Statutes;
4) United Auto violated Rule 1.510(c), Fla. R. Civ. P. by not providing notice of its intent to rely on its previously filed affidavit/report of Dr. Merrit in opposition to the motion for summary judgment; and
5) The trial court’s reasoning is not controlling. Even if the trial court’s reasoning was incorrect, its decision was correct and should be affirmed.
The issues in paragraphs 1 and 4 above were not raised by Stand-Up MRI at the hearing on its Motion for Final Summary Judgment.
The standard of review for a lower court’s summary judgment order is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). To analyze summary judgment properly, this 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, 130-31 (Fla. 2000); see Philip J. Padovano, Florida Appellate Practice, Vol. 2, § 9.4, pp. 163-164 (2006 ed., West 2005).
We will first address the second prong of the analysis set out in Volusia — whether the trial court applied the correct rule of law.
In a case where an insurer wishes to withdraw payment of claims, it would need to first obtain a valid medical report prior to withdrawal of future payments. See Section 627.736(7), Florida Statutes. In a case where payment is not made within 30 days of receipt of claim, and it is ultimately determined that the payment was due, the insurer is subject to interest and legal fees since the payment would then be considered overdue. See Section 627.736(4), Florida Statutes.
According to the facts of this case, the insurer failed to pay the claim within 30 days of receipt of claim. As a result, the applicable statute is Section 627.736(4), Florida Statutes. The Florida Supreme Court has held that the statutory penalty of ten percent interest for “overdue” payments comes into play if the insurer fails to pay the bill within thirty days after written notice and did not have reasonable proof within that thirty-day period to establish that it was not responsible for the bill. However, the penalty for “overdue” payments, which runs from the expiration of the thirty-day period, applies only if the insurer is ultimately found liable for the claim. The insurer does not forfeit its ability to contest payment by its failure to obtain reasonable proof in the thirty-day period. United Automobile Insurance Company v. Rodriguez, 808 So.2d 82 (Fla. 2001). Therefore, the trial court misapplied the applicable law and should have considered the affidavit and report of Dr. Merrit even though it was not prepared within 30 days from receipt of the claim.
We now address the remaining prong of the analysis set out in Volusia — whether there is a genuine issue of material fact.
The arguments of Stand-Up MRI regarding the legal sufficiency of Dr. Merrit’s affidavit, and the failure of United Auto to comply with the notice requirement set out in Rule 1.510(c), Fla. R. Civ. P., were not raised by Stand-Up MRI at the hearing on its Motion for Summary Judgment. Courts have long held that an issue not raised is an issue waived. Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). However, in an effort to conserve judicial resources, the court will address the issue of the legal sufficiency of the affidavit. The violation of the notice requirement does not require further elaboration.
Stand-Up MRI contends that the affidavit of Dr. Merrit is legally insufficient and therefore does not constitute competent, admissible evidence. Specifically, Stand-Up MRI asserts that:
a) United Auto failed to attach the medical records referenced in its peer review report, in violation of Fla. R. Civ. P. 1.510(e);
b) the affidavit accompanied by the peer review is unsworn; and
c) the affidavit is not based on personal knowledge.
Florida Rule of Civil Procedure 1.510(e) states in its entirety:
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
The issue of the requirement that documents be attached to the affidavit was decided in Crovella v. Cochrane, 102 So.2d 307 (Fla. 1st DCA 1958). At the time Crovella was decided, Fla. R. Civ. P. 1.510(e) was numbered as Fla. R. Civ. P. 1.36(e). Rule 1.36(e) required that sworn or certified copies of all papers referred to in an affidavit “shall” be attached or served therewith, as does Rule 1.510(e). In Crovella, the doctor failed to attach the papers/records to the affidavit as required by Rule 1.36(e). The patient requested that the court strike the affidavit due to noncompliance with the rule. However, the court refused to strike the affidavit since the records referred to in the affidavit were already part of the record and the references to them were so explicit as to leave no question as to its identity. Id.
A review of the records in the case at bar, indicates that the medical records were filed by Stand-Up MRI on June 7, 2006. Furthermore, the record reveals that the peer review report, which was attached to the affidavit and specifically incorporated into the affidavit, sets forth, with specific detail, the medical records reviewed.
As to Stand-Up MRI’s assertion that Dr. Merrit’s affidavit was unsworn, a review of the affidavit indicates that it was sworn before a notary public.
As to Stand-Up MRI’s assertion that the affidavit was not based on Dr. Merrit’s personal knowledge. Although it is true that the peer review does not state that it is based on “personal knowledge” but rather “best of my knowledge,” the affidavit attached to the peer review indicates that the information in the peer review was “based on his personal knowledge.” Therefore, we find that the attached affidavit is sufficient to rebut Stand-Up MRI’s contention that the affidavit be based on personal knowledge in accordance with Hahn v. Frederick, 66 So. 2d 823 (Fla. 1953).
Stand-Up MRI also asserts that United Auto’s medical report/peer review is not a valid report because it was not based on the physical exam of the insured.
Section 627.736(7)(a) states in pertinent part:
A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. . . (emphasis added).
The statute authorizes the physician to base the report on their review of the examination and treatment records of the injured person. There exists no requirement to conduct a separate physical examination. It is evident that the examination records were reviewed by Dr. Merrit. Paragraph 9 of his peer review report reflects that he reviewed physical examination worksheets dated 12/13/04, 1/18/05, 2/22/05 and 3/29/05.
This court finds that the affidavit is legally sufficient and the report is valid. Moreover, paragraph 10 of the affidavit of Dr. Merrit refers to the cervical MRI conducted on 12/20/04, as not being reasonable, related or necessary. Therefore, there is an issue of material fact that still needs to be determined.
Both of the prongs of the analysis in Volusia are satisfied and FOR THIS REASON the order granting summary judgment in favor of the Appellee is REVERSED. We also reverse the lower court’s order awarding Stand-Up MRI’s attorney’s fees and costs. Stand-Up MRI will be entitled to attorney’s fees and costs, provided it prevails on remand. This cause is REMANDED to the trial court for further proceedings consistent with this opinion. (THOMAS AND EIG, JJ. concur.)
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1The lower court entered an order which reserved its ruling until the resolution of the rehearing of United Automobile Insurance Company v. Asclepius Medical a/a/o Nestor Pelaez, 13 Fla. L. Weekly Supp. 425a (Fla. 11th Cir. Ct. Feb. 21, 2006).
