15 Fla. L. Weekly Supp. 219a

Insurance — Personal injury protection — Summary judgment — Peer review report — Error to strike peer review report as untimely because report was not obtained during 30-day period allowed for obtaining proof that services were not reasonable, related or necessary — However, where insurer did not object to order striking report or request rehearing on order, issue was not preserved for appeal

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. OPEN MAGNETIC IMAGING, INC., a/a/o Rosa Crespo, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-459 AP & 07-080 AP (Consolidated). L.C. Case No. 04-1196 SP 25. January 2, 2008. An Appeal from the County Court of Miami-Dade County, Andrew Hague, Judge. Counsel: Denise Garno, for Appellant. Arnold Ginsberg and Jon Friedland, for Appellee.

(Before DARYL TRAWICK, IVAN FERNANDEZ, and SARAH ZABEL, JJ.)

(PER CURIAM.) Defendant below, United Automobile Insurance Company (“United Automobile”), appeals an order of the trial court granting Plaintiff, Open Magnetic Imaging Inc.’s (“Open Magnetic”) Motion for Summary Judgment and corresponding award of attorney’s fees and costs. The Court, having read the briefs of the parties,¹ is fully advised in the premises and makes the following conclusions of fact and law:

Open Magnetic filed suit upon United Automobile’s non-payment of PIP benefits for medical services rendered to the insured. Three years after receipt of the bill from Open Magnetic, United Automobile submitted a report of peer review supporting its rejection of the claim. Open Magnetic moved, and the trial court granted, Open Magnetic’s Motion to Strike the report of peer review as untimely pursuant to Fla. Stat. §627.736(4)(b) (2005). On appeal, United Automobile asserts that the lower court erred by not accepting its report of peer review outside of the 30-day period as permitted by the statute.

United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) interprets the application of Fla. Stat. §627.736(4)(b). Rodriguez provides that an insurer’s failure to obtain proof that the services were not reasonable, related or necessary within 30-days renders the payment overdue, but does not forever bar the insurer’s ability to otherwise challenge the propriety of the claim. Therefore, the trial court’s stated rationale for striking the report of peer review as untimely was improper.

However, it is well settled that a ruling based on erroneous reasoning may be upheld if an alternative theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). A general rule of appellate review, based on practical necessity and fairness to the opposing party and the trial judge, bars from appeal issues not timely raised below. Schweigel v. State, 382 So. 2d 868 (Fla. 5th DCA 1980). The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error. Triana v. FI-Shock, Inc., 763 So. 2d 454 (Fla. 3d DCA 2000).

Here, United Automobile neither objected to, nor requested a rehearing on the trial court’s order striking the report of peer review. To the contrary, United Automobile took no action regarding the adverse ruling until filing the instant appeal upon the lower court’s subsequent granting of summary judgment in favor of Open Magnetic. Moreover, although United Automobile attempts to appeal the trial court’s order granting summary judgment, the only argument United Automobile proffers on appeal relates back to the order striking the report of peer review.

Accordingly, as a result of United Automobile’s failure to preserve the substantive issue it argues on appeal, the lower court’s order granting summary judgment and the corresponding award of attorney’s fees are AFFIRMED.

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¹When this matter was called for the presentation of oral arguments, counsel for both parties waived argument and asked the Court to rely on the briefs filed.