17 Fla. L. Weekly Supp. 980a
Online Reference: FLWSUPP 1710APOL
Insurance — Personal injury protection — Coverage — Medical expenses — Denial — Valid medical report — Error to exclude peer review testimony because peer review was generated after denial of benefits — Statute relied upon by trial court applies when insurer withdraws already-commenced payments for treatments made by provider, not when payment is denied
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. KENDALL SOUTH MEDICAL CENTER A/A/O GEORGE APOLON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-052 AP. L.T. Case No. 03-13826 SP 25. June 23, 2010. An Appeal from the County Court in and for Miami-Dade County. Counsel: Ivy R. Ginsberg, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Christian Carrazana, Panter, Panter, & Sampedro, P.A., for Appellee.
(Before MUIR, REYES, and DONNER, JJ.)
CONFESSION OF ERROR
(PER CURIAM.) Appellant United Automobile Insurance Company denied payment to appellee George Apolon for treatments he sought from injuries ostensibly sustained from an automobile accident. These treatments were administered by Dr. Carlos Perez, M.D.
Appellee submitted a motion in limine to bar the testimony of Dr. Millheiser on the issue of the reasonableness, relatedness, and necessity of the treatments. Appellant submitted a “valid report” in the form of a peer review to counter the motion.
Here, Appellant appeals an adverse ruling made against it by the trial court which directed a verdict and granted the motion in limine in favor of the Appellee, under the auspices of the absence of an admissible peer review testimony. The Appellant’s peer review was not considered because it was generated well after an independent medical examination (IME), and the IME had cut off treatment as of a certain date and was inconsistent with the peer review. Now, Appellee files a confession of error, citing to United Auto. Ins. Co., v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009).
In the Santa Fe decision, the Third District Court of Appeal reversed a grant of summary judgment by the trial court. It clarified the law, and held that section 627.736(7)(a), Florida Statutes is not implicated when an insurer denies payment for a provider’s treatments (a denial of benefits case). The Third District held that production of a “valid report” is not required to deny the payment of treatments made by a provider. Id. at 67. Section 627.736(7)(a), Florida Statutes is to be used when an insurer withdraws already commenced payments for treatments made by a provider (a withdrawal of benefits case).
Since the instant case is a denial of benefits case, reliance on section 627.736(7)(a), Florida Statutes (2007) was not correct. A denial of benefits case is governed by section 627.736(7)(b), Florida Statutes (2007). As such, the trial court erred in its ruling. This matter is reversed and remanded to the trail court for proceedings consistent with this ruling.
