16 Fla. L. Weekly Supp. 1078a
Online Reference: FLWSUPP 1611PAIZ
Insurance — Personal injury protection — Withdrawal of benefits — Valid report — Reconsideration of order granting final summary judgment in favor of medical provider due to untimeliness of records review affidavit is denied where insurer has presented no evidence as to why it did not attempt to secure affidavit until day it was due, and affidavit offers only conclusory opinion that injuries are not causally related to accident — Moreover, affidavit by physician who did not personally examine insured or review examination of insured is not valid report for purposes of denying or withdrawing PIP benefits
AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Miriam Paiz, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-05246 SP 05. September 1, 2009. Bronwyn C. Miller, Judge. Counsel: Emilio R. Stillo and Garrett T. Zediker, Florida Trial Team LLC, Miami, for Plaintiff. Majid Vossoughi, Majid Vossoughi PA, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION
THIS CAUSE, having come before the Court for consideration on Defendant’s, United Automobile Insurance Company’s Motion for Reconsideration.
Background. The Plaintiff filed suit for personal injury protection benefits for dates of service 6/10/04 to 10/8/04. On June 2, 2008, the Defendant obtained a records review by Dr. Marvin Merritt DC. On May 11, 2009, the Court reserved ruling on Plaintiff’s Motion for Final Summary Judgment. The Defendant did not timely file Dr. Merrit’s affidavit. The Court granted Plaintiff’s motion on May 21, 2009. On July 30, 2009, the Court entered a Final Judgment in Favor of the Plaintiff. The Defendant did not serve their Motion for Reconsideration until August 3, 2009. The Defendant has filed a Motion for Reconsideration stating three basis: 1) the Defendant should be permitted to file affidavits at any point in time, including rehearing, 2) that Dr. Merritt’s report is not conclusory, 3) that Dr. Merrit’s report is a valid report pursuant to United Automobile Insurance Company v. Metro Injury & Rehab Center (a/a/o Magda Davis), [34 Fla. L. Weekly D1516a].
Conclusions of Law. The Defendant’s argument fails on all three grounds.
1) The Defendant’s verified motion to continue states that the Defendant did not attempt to secure the affidavit of Dr. Marvin Merrit DC until May 7, 2009 (the very same day it was due). The Defendant has presented no evidence asto why it waited until the day it was due to attempt to procure the affidavit and thus has not established “excusable” neglect with regards to same. Coastal States Mortgage Corporation v. Commonwealth Savings & Loan Association of Florida, 497 So. 2d 917 (Fla. 3rd DCA 1986) and Independent Fire Insurance Company v. Rogers, 580 So. 2d 229 (Fla. 3rd DCA 1991).
2) Dr. Merrit DC opines in his affidavit “It is this reviewer’s opinion that these injuries are not casually related to the motor vehicle accident of 5/13/04”. Dr. Merrit gives no medical or factual history. Dr. Merrit gives no subjective complaints nor does he offer any explanation for his opinion. Dr. Merrit’s opinion is conclusory. Gruber v. Mount Sinai Hospital of Greater Miami Inc., 487 So.2d 76 (3rd DCA 1986); Pino v. Lopez, 361 So.2d 192 (Fla. 3rd DCA 1978); United Automobile Insurance Company v. Peter F. Merkle, M.D., 16 Fla. L. Weekly Supp. 632a (Broward Circuit Court, 2009).
3) The Defendant also moves for reconsideration on the Court’s determination that Dr. Merrit’s report is not a valid report on the basis of United Automobile Insurance Company v. Metro Injury & Rehab Center (a/a/o Magda Davis), (WL. 2243804 3rd DCA, July 29, 2009) [34 Fla. L. Weekly D1516a]. Dr. Merrit DC states in his affidavit: “The provider submitted charges for evaluation and management of a new patient (99205) on 6/10/04. In reviewing the documentation presented, there was no report of this evaluation and management service. This report would contain the patient’s case history, subjective complaints, and the provider’s objective findings, working diagnosis, treatment plan, goals and projected outcomes”.1 A “valid report” must be performed by a physician who examines the insured or, excluding the treating physician, a physician who reviews the examination and treatment records of the insured. Id. In this case, the undisputed evidence is that Dr. Merrit DC reviewed neither the treating physician’s examination nor a “compulsory” or “independent” medical examination.
ORDERED AND ADJUDGED that said Motion is hereby DENIED.
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1The 6/10/04 report is attached as an Exhibit to Plaintiff’s Motion. It is unknown why the Defendant did not provide the report to Dr. Merrit DC.
