16 Fla. L. Weekly Supp. 503a
Online Reference: FLWSUPP 166SILA
Insurance — Personal injury protection — Coverage — Withdrawal of benefits — Retroactive notice of withdrawal — Effective date of cessation of benefits was date of independent medical examination that resulted in opinion that no further treatment would be reasonable, related or necessary, not date two weeks later when insurer generated letter withdrawing benefits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MARUCCI WELLNESS CENTERS, LLC., a/a/o Haraman Sila, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-191 AP. L.C. Case No. 05-1300 CC 26 (02). April 6, 2009. An Appeal from the County Court for Miami-Dade County. Counsel: Lara J. Edelstein, Office of the General Counsel/Trial Division, United Automobile Insurance Company. Mari Sampedro-Iglesia, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before SCOTT J. SILVERMAN, DARYL E. TRAWICK, and KEVIN M. EMAS, JJ.)
SUBSTITUTED OPINION
[Original Opinion at 16 Fla. L. Weekly Supp. 17b]
(TRAWICK, DARYL E., J.) The opinion rendered in this matter on November 18, 2008 is hereby WITHDRAWN and this opinion is SUBSTITUTED.
Appellee Marucci Wellness Center, LLC (“Marucci” or the provider) is a medical provider that rendered care and treatment to Havaman Sila, who was injured in an automobile accident on January 17, 2004. At the time of the accident, Sila was insured for personal injury protection coverage by United Automobile Insurance Company (“United Auto”).
Sometime after Sila had begun receiving medical care from the provider, United Auto arranged for Sila to submit to a medical examination by Dr. Luis Castillo, a doctor selected by the insurer. Dr. Castillo examined Sila on March 10, 2004, and concluded that all treatment to date had been reasonable, related and necessary (RRN), but that no further medical treatment would be RRN. Based upon the medical examination, United Auto generated a letter two weeks later (March 25, 2004) advising Marucci that it was not providing coverage for medical treatment rendered after March 10th. During the two-week period between the medical examination and the date of United Auto’s letter to the provider, Marucci continued to provide treatment to Sila. Until it received United Auto’s March 25th letter, the provider was not aware of the decision to discontinue treatment authorization as of March 10.1
The trial court granted the provider’s motion for summary judgment due to United Auto’s failure to satisfy a prerequisite component of the statutory medical examination withdrawal defense when it gave notice to the provider of the termination of benefits after treatment had been rendered. United Auto filed this appeal, arguing that summary judgment for the provider was inappropriate because any treatment provided after March 10 (as determined by the medical examination on that date) was not RRN, and thus the date of the medical examination, not the date of the letter, controls.
United Auto concedes that it was required to give notice to the insured of the partial payment or rejection of a claim through an “itemized specification” or “explanation of benefits” (EOB), pursuant to Florida Statutes §627.736(4)(b) (2008). See also Tiedtke v. Fidelity & Casualty Co. of New York, 222 So. 2d 206 (Fla. 1969) (notice to insured within a reasonable time is required when an insurance company disclaims further policy benefits). Additionally, insurance companies who fail to notify doctors of their intent to withdraw treatment authorization within a reasonable time may be estopped from denying payment for care rendered prior to the date notice is provided. Irigoyen v. Aircraft Services, Inc., 544 So. 2d 1054 (Fla. 1st DCA 1989).
Thus, the issue before this Court was whether the trial court was correct in concluding that, as a matter of law, the effective date of the cessation of benefits was March 25, 2004, the date of the letter notifying the insured that payment for medical care was terminated. United Auto maintains that the Court erred in this conclusion, and that the effective date was instead March 10, 2004, the date of Dr. Castillo’s medical examination. The insurer claims that any expenses incurred after March 10th were not RRN, and thus not covered under the terms of the insurance policy. United Auto additionally argues that any issue of waiver and/or estoppel raised by the two week delay between the examination and the termination letter raises factual issues which are not conducive to summary judgment. Marucci, on the other hand, urges the Court to follow the precedents rendered by our colleagues of the Eleventh Judicial Circuit in United Automobile Insurance Company v. Mendoza, 11 Fla. L. Weekly Supp. 299a (Fla. 11th Cir. App., Feb. 24, 2004) and Pines Total Health Center, Inc. v. United Automobile, Case No. 03-7289, (Fla. 11th Cir. 2006) as well as the Seventeenth Judicial Circuit in Ranjuattan v. United Automobile, Case. No. 05-13078 (Fla. 17th Cir. 2006). Each of these opinions upheld waiver and/or estoppel defenses. Marucci also contends that United Auto failed to properly preserve any objection to the trial court’s reliance on estoppel, since United Auto did not object to the admission of the March 25 termination letter. However, we agree with the Appellant that March 10, and not March 25, is the relevant date here for purposes of determining when treatment was no longer reasonable, related, or necessary.
Florida Statute section 627.736(7)(a) (2008)2, is concerned primarily with an insurer’s right to demand a medical examination when the insurer is deciding whether to withdraw authorization for payments and/or benefits. This subsection addresses situations where the insurer has already authorized treatment and an insured has already begun receiving benefits and treatment. The statute provides the insurer with a right to seek (and the insured with a concomitant obligation to undergo) a medical examination to determine whether the insurer should continue authorizing treatment. Additionally, it requires the insurer to obtain a “valid report” (in this case, a report from the medical examination) before withdrawing authorization.
However, there is nothing in subsection (7)(a) that leads this Court to conclude that the withdrawal of authorization is prospective only, meaning that the insurer is permitted to request a medical examination for the sole purpose of withdrawing future medical treatment authorization. To the contrary, subsection (7)(a) expressly allows an insurer to request an IME whenever the mental or physical condition of the insured is “material to any claim that has been or may be made for past or future personal injury protection benefits . . .”. Thus, by its terms, subsection (7)(a) allows medical examinations not only to determine whether an insurer will continue to authorize treatment for the injuries, but also to determine whether it had properly authorized past treatment for injuries.
Subsection (7)(a) also provides that “An insurer may not withdraw payment of a treating physician without the consent of the injured person. . . unless the insurer first obtains a valid report . . . stating that the treatment was not reasonable, related, or necessary.” The language used in this provision is significant in two respects: first, the statute requires that the insurer obtain a valid report as a condition precedent to withdrawing payment. If the Legislature had intended that the relevant condition precedent be obtaining a valid report and notifying the insured of same, it surely could have said so, but it did not. It is the obtaining of the medical examination that is the relevant condition permitting an insurer to withdraw authorization. Second, if the subsection was intended to only address the withdrawal of authorization for future treatment, why would the Legislature require a valid report “stating that treatment was not reasonable, related, or necessary” as opposed to requiring a valid report “stating that future treatment would not be reasonable, related, or necessary”? This language clearly demonstrates a legislative intent that the concept of “authorization withdrawal” includes past as well as future treatment. As such, we see no valid reason why the insurer should be prohibited from withdrawing authorization for treatment provided between the date of the medical examination and the date of the letter. To hold otherwise would be contrary to the express language of the statute.
As to the arguments raised regarding the affirmative defenses of waiver, laches and estoppel, normally such issues raise factual questions that preclude summary judgment. See Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098 (Fla. 5th DCA 2006); Cummins v. Allstate Indem. Co., 732 So.2d 380 (Fla. 4th DCA 1999); Dusish v. Horley, 525 So.2d 507 (Fla. 2d DCA 1988). However, nothing in the trial court’s order suggests that any of these affirmative defenses were relied upon by the court in granting summary judgment. As a result, these issues are not properly raised before this court.
We reverse the decision of the lower tribunal and remand for further proceedings consistent with this opinion. (SILVERMAN and EMAS, JJ., concur.)
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1Two points are worth noting: First, the insured was obviously aware of the medical examination performed upon him on March 10; second, pursuant to §627.736(7)(b), the insured had the right to obtain a copy of the report prepared as a result of the medical examination.
2Fla. Stat. section 627.736(7)(a) (2008) provides in pertinent part:***
“An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.”
