17 Fla. L. Weekly Supp. 1083a
Online Reference: FLWSUPP 1711RIVEInsurance — Personal injury protection — Error to refuse to consider peer review affidavit and report because peer reviewer did not personally examine claimant — Attorney’s fees — Insurer’s motion to grant attorney’s fees pursuant to section 57.105 because provider continued to defend its erroneous position after issues in the case were definitively decided by the district court of appeals is denied under circumstances of this case, notwithstanding provider’s failure to respond to motion within twenty-one days
STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. FACILITY MEDICAL CENTER, INC. as assignee of Barbara Rivera, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-427 AP. L.C. Case No. 05-142 SP 26. July 14, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Robin Faber, J. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans & Able, P.A., for Appellant. Stuart Yanofsky, Stuart B. Yanofsky, P.A., Neil Gonzalez, Law Offices of Gonzalez and Associates, LLC and Maria E. Corredor, Law Offices of Maria E. Corredor, P.A., for Appellee.
(Before COHEN, SARDUY and CABALLERO, JJ.)
(COHEN, Judge.) This an appeal from a final order of summary judgment in a PIP case in which Facility Medical, (the “Appellee”), sought to recover PIP benefits after providing medical services to the insured Barbara Rivera. State Farm (the “Appellant”), denied the payment of any benefits to Facility Medical. The Court granted summary judgment to Facility Medical because State Farm’s peer review was not performed within thirty days of State Farm’s receipt of Rivera’s medical bills and because State Farm’s peer reviewer, Dr. Weinstein, did not personally examine Rivera. The law is clear in the Third District that an expert performing a peer review need not personally perform an examination of the insured. Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009). Moreover, there is no requirement that a peer review be performed within thirty days of the receipt of medical bills where a claim is denied pursuant to section 627.736(4)(b), Fla. Stat. Id. See also United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001), reh’g denied Feb. 12, 2002, United Automobile Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-47 (Fla. 3d DCA 2009). Accordingly, this case is reversed and remanded to the trial court. The grant of attorney’s fees to Facility Medical is, likewise, reversed1.
The Appellant State Farm is asking this Court to grant attorney’s fees pursuant to 57.105(1)(b), Fla. Stat., because Facility continued to defend its erroneous position before the 11th Judicial Circuit even after the issues in the case were definitively decided by the Third District Court of Appeals. Indeed, the Appellant served Facility Medical with two twenty-one day notices pursuant to 57.105(4), both of which Facility Medical failed to answer. When queried about this failure to answer the notices, in light of definitive case law contrary to Appellee’s arguments, Facility’s attorney replied that he could not “confess error” because the case is a “pipeline case.”
Nonetheless, Appellee failed to file any response to Appellant’s 57.105 motions, or notify the Court that the Appellee acknowledges that the Court is bound by existing case law in the Third District and that oral argument is not necessary if Appellant agrees. Moreover, Appellee failed to apprise the Court or Appellant that it could not confess error, that the case was a “pipeline” case or to cite to any case presently pending before the Supreme Court dealing with identical issues. While the Court is tempted to grant Appellant’s request for fees, the Court will give Appellee the benefit of the doubt in believing that he had no recourse but to proceed the way that he did.
However, Appellee should be mindful in the future that 57.105 motions must be answered within twenty-one days and that the Court’s time should not be wasted with oral arguments that are legally indefensible. In addition, Appellant should be mindful of the unwarranted expenditure of legal fees by Appellant. The Appellant’s motion for 57.105 attorney’s fees is denied.
FOR THESE REASONS, we direct the lower court to vacate the order granting final judgment in favor of Appellee, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED. (SARDUY and CABALLERO, JJ., concur.)
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1The Court cautions the trial court to follow applicable law. At the time that the trial court heard this case, United Automobile Ins. Co. v. Rodriguez, 808 So. 2d 82, had already been decided by the Florida Supreme Court. In addition, the Appellant set a rehearing in this case in order to bring to the trial court’s attention a recent 11th Judicial Circuit case holding that an expert peer reviewer need not personally perform an examination of the insured. See United Automobile Ins. Co. v. Partners in Health Chiropractic, 15 Fla. Law Weekly Supp. 776b (Fla. 11th Cir. Ct. June 5, 2008). That case was subsequently affirmed by the Third District Court of Appeals in Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858.
