16 Fla. L. Weekly Supp. 296a
Online Reference: FLWSUPP 164PERE2
Insurance — Personal injury protection — Denial of benefits — Where insurer denied benefits for treatment subsequent to independent medical examination, and three years after denial of claim and two years after commencement of litigation, the insurer obtained peer review report opining that none of treatment rendered by medical provider was reasonable, related or necessary, trial court did not err in striking peer review report
Quashed at 34 Fla. L. Weekly D2267a (United Auto Ins. Co. v. Perez, Fla. 3DCA 11/4/09)
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. LILIU PEREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-261 AP. L.C. Case No. 04-15013 CC 05. February 20, 2009. An Appeal from the County Court for Miami-Dade County, Shelly J. Kravitz, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.
(Before FARINA, PINEIRO, and RODRIGUEZ, JJ.) Affirmed.
(FARINA, Judge.) The Appellant, United Automobile Insurance Company appeals a summary judgment entered on March 27, 2007 in favor of Appellee, Liliu Perez. The underlying argument for the appeal is that on November 3, 2006, the trial court improperly granted Appellee’s Motion to Strike a peer review report that was filed by the Appellant approximately three years after the denial of Appellee’s insurance claim.
The record supports the following facts: On or about September 25, 2003, Appellee, who was insured by Appellant, was involved in a motor vehicle accident in which she sustained personal injuries. Appellee sought medical treatment for her injuries from October 1, 2003 until November 19, 2003.
On November 11, 2003, Appellee complied with Appellant’s request to submit to an independent medical examination (“IME”) conducted by Dr. Pedro Musa-Ris. The IME report concluded that“further treatment or diagnostic testing within my licensing chapter would not be reasonable, necessary or related for the accident in question.”
On November 17, 2003, Appellant issued a suspension of benefits letter, based on the IME report, stating: “[p]lease be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after 11/24/03.”
On September 8, 2004, the Appellee filed a complaint against Appellant for Breach of Contract for PIP benefits because the Appellant failed to pay any of the Appellee’s medical bills. On November 4, 2004, Appellant filed its answer and affirmative defenses. The Affirmative Defenses included a general statement that the Appellee’s medical bills were not reasonable, related or necessary. The Affirmative Defenses also specifically stated that Appellant denied payment for medical expenses incurred subsequent to November 24, 2003 because they were not reasonable and/or necessary. Appellant’s interrogatories also stated the same. In response to Appellee’s requests for production, Appellant submitted the suspension letter which also stated the same.
On October 31, 2006, approximately three years after the denial of the claim and approximately two years after the start of litigation, Appellant filed a peer review report (“PRR”) by Dr. Glatzer, who is Appellant’s expert on reasonableness, relatedness, and necessity. The PRR was obtained on May 12, 2005, and stated the opinion that“none of the care rendered at Florida Institute for Pain was reasonable, necessary or related.”
On November 3, 2006, the Appellee filed a motion to strike Glatzer’s PRR and prohibit him from testifying from his peer review on the ground that the PRR was “untimely”.
On February 5, 2007, a hearing was convened on the motion to strike and the PRR was struck, based on the finding that the PRR was “untimely”. The Appellee’s motion argued that the PRR was untimely because it was obtained by Appellant over six (6) months after it had denied benefits to the Appellee. Appellant did not file anything in opposition to the motion to strike, nor did Appellant present law to the trial court in opposition to the motion.
This Court is aware that the Florida Supreme Court determined that Florida law is devoid of any requirement that an insurance company must obtain a peer review report within thirty days from the date of the notice of loss to establish or contest the reasonableness, relatedness, and necessity of a PIP claim. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001). In addition, the thirty day period provision is provided solely for the purpose of permitting an insurer to avoid interest and attorney fees, not to establish reasonable proof of a PIP claim. Id. Additionally this Court is also aware that, section 627.736(4)(b), Florida Statute, specifically states in pertinent part:
“[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable . . . Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.”
However, this Court finds that it could not have been the intent of the legislature to allow an insurance company to wait three years after the denial of a claim and two years after the commencement of litigation for an insurance company to file a peer review report as the only evidence which supports a blanket denial of a claim.
Appellant included in its affirmative defense that it had denied the benefits for medical bills issued for service after November 24, 2003. An IME, the suspension letter, interrogatories, and other propounded discovery support this claim. The Appellant had the time and opportunity to procure and file a peer review report prior to three years after the claim was denied and two years after the litigation commenced. There was no reason given as to why Appellant took so long to procure and file such a report.
The trial court’s order stated that the submission of the peer review report was “untimely”. The order did not explain why the court found the peer review untimely. However, even when based on erroneous reasoning, a trial court’s conclusion or decision will generally be affirmed if the evidence or an alternative theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
The Court finds that it could not have been the intention of the legislature to allow for an inequitable finding in favor of an insurance company. Especially in those instances where there is an implied admission made by the insurance company or where the insured reasonably relied upon the insurance company’s representations. It is axiomatic that insured individuals rely upon the policies they purchase from their insurance companies. In this instance, not only did the Appellee have a valid policy and a claim based upon an injury, but she also sought medical services from a medical professional for that injury as any reasonable person would do. While these services were being rendered, Appellee complied with a request for an independent medical examination as arranged by the Appellant which determined that further treatment would not be reasonable, related, or necessary. On the other hand, the IME did not conclude that the previous treatment rendered was not reasonable, related, or necessary.
Shortly after the IME was administered, the Appellee received a suspension letter. The letter did not allude to, or warn of, the possibility that the Appellee’s previous medical services would not be paid. Nor was there any warning that there would be a possible finding that her previous medical care was not reasonable, related, or medically necessary. The letter also did not inform the Appellee of the possibility that a peer review would be conducted. Nor did the Appellant attempt to request that a peer review be performed at that time.
On February 1, 2007, Appellee moved for final summary judgment on Appellant’s Disclosure and Acknowledgement affirmative defense on the issues of reasonableness, relatedness, and medical necessity. The Appellee supported her motion with affidavits from her treating physician Marianela de la Portilla, MD and Cristina Spinola, the billing clerk for Florida Institute for Pain. Appellant did not file anything in response to the motion for summary judgment.
On February 22, 2007, the deposition transcript of Appellant’s litigation adjuster, Gloria Ford (“Ford”) was filed. In her deposition, Ms. Ford testified that Appellee was examined by Dr. Musa-Ris on November 11, 2003. Subsequent to the examination, benefits were suspended, effective November 24, 2003.
On March 27, 2007, a hearing was convened on the Appellee’s motion for summary judgment. At the hearing Appellant advised that since Dr. Glatzer’s PRR was previously struck, Appellant was unable to file a doctor’s affidavit in opposition to the motion. However, Appellant did not specifically proffer an objection to the motion for summary judgment. The Appellee’s motion for summary judgment addressed the charges incurred up until the cut-off date of November 24, 2003. The trial court granted the motion for summary judgment for the payment of charges incurred prior to November 24, 2003, and found that the treatment rendered prior to November 24, 2003 was reasonable, related, or necessary.
Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
Based on our affirmance of the motion to strike, we find that the trial court did not err when it granted the Appellee’s motion for summary judgment.
Appellee’s Motion for Attorney’s Fees, pursuant to § 627.428(1) is GRANTED and remanded to the lower tribunal for a determination of reasonable attorney’s fees for the Appellee, the prevailing party in this cause.
FOR THE FOREGOING REASONS, the order granting summary judgment in favor of Appellee is AFFIRMED. (PINEIRO and RODRIGUEZ, JJ., concur.)
