16 Fla. L. Weekly Supp. 505b
Online Reference: FLWSUPP 166BETAN
Insurance — Personal injury protection
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. JOSE A. BETANCO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-302 AP and 06-313 AP (Consolidated). L.C. Case No. 02-013264-CC 05. July 12, 2007. On appeal from the County Court for Miami-Dade County, Judge Teretha L. Thomas. Counsel: Michael Neimand and Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A.; and Jose A. Yanez, Jose A. Yanez, P.A., for Appellee.
(Before LAWRENCE A. SCHWARTZ, JACQUELINE HOGAN SCOLA, and SPENCER EIG, JJ.)
Trial Court decision is AFFIRMED. JUDGES SCHWARTZ AND EIG concur in affirmance. As to the Appellee’s Motion for Appellate Attorney’s Fees, said motion is GRANTED. This cause is hereby remanded to the trial court for determination of reasonable fees and costs.
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(JUDGE HOGAN SCOLA dissents.) I, respectfully, dissent from the majority affirmance of the trial court’s granting of summary judgment. I conclude that the trial court incorrectly granted summary judgment for the insured in the proceeding below because there was a genuine issue of fact as to whether the medical treatments administered were reasonable, related and necessary. Prior to the February 7, 2006 summary judgment hearing, United Auto timely filed the EUO transcript of the insured for the court’s consideration. During his EUO, Betanco testified that the treatment was not helping him feel better, yet the provider failed to make any changes even after he told them so. The insured had to seek additional medical attention after his discharge from the first provider. The EUO transcript created a genuine issue of material fact, which should have precluded summary judgment.
The lower court also erred when it decided that Dr. Millheiser’s peer review report could not be considered in opposition to the summary judgment motion. Since the report referred to the insured’s medical records, which had already been provided to the insurer in discovery in response to a request to produce, they were not required to be attached to the peer review report. See Fla. R. Civ. P. 1.510(e); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958). Moreover, the fact that the report was obtained more than 30 days after the claim had been filed is not a legally adequate reason to exclude it. In §627.736(4)(b), Fla. Stat. (2003), the statute sets forth the requirement that personal injury protection insurance benefits shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss unless the insurer has reasonable proof to establish that the insurer is not responsible for the payment. However, the statute goes on to read that:
“This 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 or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be at any time, including the payment of the claim or after the 30-day period for payment set forth in this paragraph”.
Moreover, the Florida Supreme Court held that the insurer’s failure to pay PIP benefits within 30 days after receiving written notice of a covered loss does not forever bar it from contesting the claim. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001). Rather, the statutory penalties of ten percent interest and attorney’s fees are the only penalties for an overdue claim. See also Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997) (holding the insurer liable for statutory penalties where the insurer paid PIP benefits more than 30 days after the receipt of the claim); Jones v. State Farm Mutual Auto. Ins. Co., 694 So. 2d 165 (Fla. 5th DCA 1997) (holding the insurer liable for statutory penalties but noting that the insurer can still contest the claim where the insurer failed to pay PIP benefits within 30 days of receipt of the claim) and, AIU Ins. Co. v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000) (holding that failure to pay PIP benefits within 30 days subjects an insurer to statutory penalties but “does not deprive the insurer of its right to contest payment”). Rodriguez at 87. As such, the trial court erred in granting summary judgment for Betanco because United Auto’s peer review report was submitted more than 30 days after the claim was filed. It should have been considered in opposition to the motion for summary judgment.
Additionally, I contend that the fee judgment that was awarded to Betanco by the lower court should also be reversed. His entitlement to fees and costs is premised on §627.428(1), Fla. Stat., which requires the entry of a judgment in favor of the insured or his assignee. Hart v. Bankers Fire and Casualty Co., 320 So. 2d 485 (Fla. 4th DCA 1975) (reversal of judgment required reversal of fee award); Marty v. Bainter, 727 So. 2d 1124 (Fla. 1st DCA 1999) (reversal of the underlying judgment requires reversal of the fee award).
