16 Fla. L. Weekly Supp. 767a
Online Reference: FLWSUPP 168LAHIT
Insurance — Personal injury protection — Withdrawal of benefits — Motion for summary judgment alleging that insurer is not entitled to dispute reasonableness, relatedness or necessity of medical bills because it failed to obtain report by physician who performed physical examination of insured is denied where there remains factual issue as to whether insurer, which failed to make any payment for dates at issue but never denied charges, had terminated or withdrawn benefits
TAMPA TRAUMA MEDICAL CENTER, INC. a/a/o Elizabeth Lahitte, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 05-27650. June 11, 2009. Daniel Gallagher, Judge. Counsel: Steven D. Manno, Andrews & Manno, P.A., Tampa. Thomas Dandar.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before this Honorable Court on November 20, 2008 on Plaintiff’s Motion for Summary Judgment and after hearing argument of counsel and being fully advised in the premises herein, it is hereby
ORDERED AND ADJUDGED that Count I of Plaintiff’s Motion for Summary Judgment regarding the allegation that Defendant breached the insurance contract by its failure to provide timely itemized specifications pursuant to Florida Statute §627.736(4)(b) is denied. It is further
ORDERED AND ADJUDGED that Count II of Plaintiff’s Motion for Summary Judgment regarding Plaintiff’s allegation that the Defendant has waived its affirmative defenses is denied. It is further
ORDERED AND ADJUDGED that as to Count III of Plaintiff’s Motion for Summary Judgment, the Plaintiff alleges that the Defendant is no longer entitled to dispute the reasonableness, medical necessity or relatedness of the medical bills at issue based upon the fact that it failed to obtain an Independent Medical Examination pursuant to Florida Statute §627.736(7) is hereby denied. Plaintiff argues that State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 2008 Fla. App. LEXIS 4342 (Fla. Dist. Ct. App. 2d Dist. Mar. 26, 2008) [33 Fla. L. Weekly D839a], stands for the proposition that withdrawal or termination of payments or the withdrawal or termination of authorization for treatment is improper unless the PIP insurer first obtains a report by a physician who performed a physical examination of the insured.
That the Plaintiff argues that since the Defendant failed to make any payment for the dates of service at issue in this lawsuit, it has essentially terminated payments on behalf of the Plaintiff.
The Defendant argues that it has never withdrawn or terminated payments or withdrawn or terminated the authorization for treatment on behalf of its insured since the medical bills at issue in this case were under investigation and a formal payment, denial, withdrawal or termination was never made by the Defendant.
That the Court has now had the opportunity to review State Farm Mutual Automobile Insurance v. Rhodes and Anderson, D.C., P.A. In the Rhodes case, State Farm never withdrew payment to the medical provider or contested the authorization to continue treatment of its insured and that §627.736(7)(a) was not implicated.
In addition, unlike the insurer in United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1999), the defendant in this case never denied the charges at issue. Therefore, there remains a question of fact.
That the Defendant argues, as it did in Rhodes, that the correct law to be analyzed by a court in this particular circumstance is Florida Statute §627.736(4)(b). That Statute does not require a physical examination before payment is denied.
Because there remains a material question of fact as to whether or not the Defendant had terminated or withdrawn payment to the Plaintiff, Plaintiff’s Motion for Summary Judgment on this issue is hereby denied.
