15 Fla. L. Weekly Supp. 671a
Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Insurer who denied payment of benefits altogether, rather than starting and then withdrawing payment, was not required to obtain medical report prior to denial of benefits — Error to enter summary judgment in favor of medical provider based on finding that insurer was barred from raising defense that treatment was not reasonable, related or necessary by failure to obtain report prior to withdrawing benefits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FLORIDA MRI, INC., a/a/o Alex Lugo, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-6034 (03). L.T. Case No. 04-03427. April 29, 2008. Counsel: June G. Hoffman and Josiane Deschamps Abel, Miami. Steven M. Goldsmith, Boca Raton. Steven Lander, Fort Lauderdale.
OPINION
(PATTI ENGLANDER HENNING, J.) THIS CAUSE is before the Court on appeal from a trial court order entering a final summary judgment in favor of Florida MRI, Inc., in an action for PIP benefits. For the following reasons, the lower court is reversed.
Florida MRI, Inc. (“Florida MRI”), filed suit seeking payment for MRIs performed on Alex Lugo. United Automobile Ins. Co. (“United Auto”) denied payment. A few months later United Auto obtained a peer review stating that the MRIs were not reasonable, related or necessary (“RRN”). Florida MRI filed summary judgment arguing that United Auto was barred from raising the RRN defense because it failed to file a physician’s report prior to withdrawing payment as required by Fla. Stat. §627.736(7)(a). The trial court found that by not making any payments on the claim, United Auto had withdrawn payments. Further, the court found that United Auto was required to file a physician’s report as a condition precedent to withdrawal of payments. Summary Judgment was entered in favor of Florida MRI.
The law is well settled that the standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So.2d 524 (Fla. 3rd DCA 2000).
On appeal, United Auto argues that denial of payment is not the same as withdrawal of payment and that United Auto was not required to file a physician’s report before it denied payment. This Court agrees. United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1998) is illustrative. In Viles, the court found that benefits were withdrawn when an insurer paid $1,100 in medical bills and then denied payment on the outstanding bills. Id.
In the present case, United Auto denied payment altogether rather than denying payment once they had started paying on the claim. No statute or case law requires a medical report prior to denying benefits. Accordingly, there are genuine issues of material fact that preclude the entry of a summary judgment.
ORDERED AND ADJUDGED that the lower court is reversed and this action is remanded for action consistent herewith.
