17 Fla. L. Weekly Supp. 742a

Online Reference: FLWSUPP 1709ALFO

Insurance — Personal injury protection — Claimant’s failure to attend examination under oath does not preclude recovery of benefits under policy at issue where claimant was not named insured or resident spouse, but an omnibus insured — Reasonable, related, and necessary treatment — Trial court erred by ruling that insurer could not deny or reduce claims without a “valid report” based on a physical examination — Insurer may rely on report obtained pursuant to section 627.736(7)(a) even when report is obtained more than thirty days after claim was submitted and is not required to obtain a physical examination to reduce or deny payment of services that are not reasonable, related, or necessary — Error to refuse to consider opinion of insurer’s expert, who conducted paper review of provider’s treatment records for claimant — Trial court’s award of attorney’s fees to provider must be reversed in view of appellate court’s reversal of underlying judgment — Provider entitled to appellate attorney’s fees on EUO issue on which provider prevailed

[Editor’s note: Lower court opinion published at 16 Fla. L. Weekly Supp. 340a.]

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. MIAMI NEUROLOGY REHAB SPECIALIST A/A/O YOAN DIAZ ALFONSO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-488 AP. L.C. Case No. 2007-10334 CC. March 23, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Lawrence D. King, J. March 23, 2010. Counsel: Michael J. Neimand, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Arnold R. Ginsberg, Ginsberg and Schwartz, and Jonathan R. Friedland, for Appellee.

(Before KREEGER, PLATZER and BERNSTEIN, JJ.)

(KREEGER, J.) United Auto appeals the summary judgment entered by the trial court that struck its affirmative defense that the claimant failed to attend the examination under oath and its defense that the treatment the claimant received was not reasonable, not related and not necessary. The claimant was insured under an omnibus policy, and Miami Neurology provided treatment for him.

The first issue is whether the claimant’s failure to attend an examination under oath precludes his recovering benefits under this policy. Alfonso is not a named insured, but is an omnibus insured under the policy. It is not disputed that United Auto scheduled Alfonso for two examinations under oath, and Alfonso failed to both, without offering a valid reason or excuse.

The relevant portions of the policy which required an examination under oath specifically referred to “you” (named insured or resident spouse) and not “A Person seeking any coverage or benefits” or “injured person” or “resident relative” (omnibus insured). Miami Neurology successfully argued to the trial court that “you” as defined in the Definitions section of the policy refers only to the named insured and resident spouse. Based on that argument, the trial court granted Miami Neurology’s motion for summary judgment as to that affirmative defense.

Construction of an insurance contract is a question of law, and the scope of our review is de novo. Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. If policy provisions are ambiguous and cannot be reasonably reconciled, then this Court must apply well-established rules of construction. Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 735 (Fla. 2002) [27 Fla. L. Weekly S492a]. The most basic rule of construction is that ambiguous policy provisions are to be construed in favor of the insured and against their drafter, the insurer. Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2099d]. The principle of expressio unius est exclusio alterius, also a rule of construction, means “the mention of one thing implies the exclusion of another”, Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181, 1187 (Fla. 2005) [30 Fla. L. Weekly S528a] and it applies to contracts as well as statutes. U.S. v. First National Bank of Crestview, 513 So. 2d 179 (Fla. 1st DCA 1987).

United Auto argues that Part F of the policy, “Duties After An Accident or Loss” which provides that “A Person seeking any coverage or benefits” must “cooperate in the investigation, settlement or defense of any claim or suit” includes a duty to submit to an examination under oath (EUO). However, the EUO requirement is specifically and separately articulated in Part E and F of the policy. Part E, “Florida Motor Vehicle No Fault Law” (the PIP portion of the policy) under “Conditions” states:

4. Examination Under Oath: As a condition precedent to receiving personal injury protection benefits, “you” must cooperate with “us” in the investigation, settlement or defense of any claim or suit, including submitting to examination under oath by any person named by “us” when or as often as “we” may reasonably require at a place designated by “us” within reasonable time after “we” are notified of the claim. Only the person being examined may be present during any examination.

Similar wording also appears in Part F of the policy as well, as follows:

2. As a condition precedent to receiving any benefits under this policy, “you” must submit to an examination under oath by any person named by “us” when or as often as “we” may reasonably require at a place designated by “us” within reasonable time after “we” are notified of the claim. Only the person being examined may be present during any examination.

The Definitions section of the policy defines “you” as the named insured or resident spouse. Thus in the PIP portion and in a general duty portion, United Auto expressly provided that a named insured or resident spouse were the only individuals required to attend an EUO.

United Auto not only mandated cooperation of a named insured or resident spouse “in the investigation, settlement of defense of any claim or suit” but it expressly established an EUO as being a required part of that cooperation in Part E, the PIP portion of the policy. United Auto could have required the attendance of “A Person seeking any coverage or benefits” at an EUO as part of a cooperation clause under Part F, a general duty portion of the policy¹, but it did not expressly do so. See Arias, 944 So. 2d at 1197 (holding that an insurer could not look to an EUO requirement in a liability portion of the policy when the PIP portion of the policy did not expressly require an EUO). This policy did not expressly require that a PIP claimant submit to an examination under oath as a condition precedent to filing suit. See e.g., Arias v. Affirmative Ins. Co., 944 So. 2d 1195, 1197 (Fla. 4th DCA 2006) [32 Fla. L. Weekly D7a].

Moreover, the assignment of benefits transfers the right to benefits but not the obligations; the obligations remain with the PIP claimant and do not shift to the provider. Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2828b].

For all of these reasons, we reject United Auto’s argument on the first issue.

The second issue on appeal is whether the trial court erred by refusing to consider the affidavit of Dr. Richard L. Glatzer. Dr. Glatzer performed a paper review of the provider’s treatment records for the claimant and opined, based upon the treatment records, that treatment given by Dr. Martinez was not reasonable, not related, and not necessary. The trial court was under the mistaken impression that a physical examination of the claimant was required to for United Auto to reduce or deny benefits. Moreover, Miami Neurology pointed out that the adjuster for United Auto testified in deposition that United Auto did not convey to Alfonso or the provider that it relied on Dr. Glatzer’s peer review for denial of the claim. The trial court therefore held that United Auto could not rely on Dr. Glatzer’s report, due to its failure to notify its insured of the ultimate reason for denial.

An insurer may at any time challenge whether treatment is reasonable, related and necessary, and the insurer may rely on a report obtained pursuant to Fla. Stat. §627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-247 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c]. An insurer is not required to obtain a physical examination complying with section 627.736(7)(a) to reduce or deny payment of services that are not reasonable, not related, and not necessary. United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897, 899-900 (Fla 3d DCA 2009) [34 Fla. L. Weekly D1516a]; Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858, 864 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a].

The trial court erred by ruling that United Auto could not deny or reduce the claims without a “valid report” based on a physical examination. See State Farm Mutual Automobile Insurance Co. v. Rhodes & Anderson, D.C., P.A., 18 So. 3d 1059 (Fla. 2d DCA 2008).

The trial court entered final judgment after granting summary judgment to Miami Neurology. It subsequently awarded Miami Neurology’s counsel attorney’s fees, costs and pre-judgment interest [16 Fla. L. Weekly Supp. 340a]. The actual burden of proof requires the moving party to show the absence of any genuine issue of material fact; all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966) (holding in review of summary judgment dealing with numerous expert opinion affidavits regarding the issue of negligence that “opposing party’s papers be liberally read and construed, as opposed to a strict reading of the movant’s paper” and that moving party must demonstrate complete lack of triable issues). All inferences deductible from proofs are drawn against party moving for summary judgment and in favor of adverse party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).

We AFFIRM the lower court’s grant of the summary judgment as to the EUO defense, finding that the policy required the named insured or spouse to attend an EUO, but not Alfonso, as the omnibus insured. Thus, Miami Neurology could not be precluded from recovering benefits which were assigned to it by Alfonso on these grounds.

We REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Glatzer failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Dr. Glatzer’s affidavit has created a genuine issue of material fact as to this issue for dates of service both prior and subsequent to February 1, 2006, the date of the first missed IME appointment. Therefore, Miami Neurology is not entitled to summary judgment as a matter of law as to whether the treatment provided to the claimant was reasonable, related and necessary.

We REVERSE the lower court’s order awarding Miami Neurology attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney’s fee award in the lower court based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].

Where a case is affirmed in part and reversed in part, the appellant may be entitled to a portion of the appellate attorneys’ fees. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). Since Miami Neurology is not the prevailing party in this appeal with respect to summary judgment as to the reasonableness, relatedness and necessity of Dr. Martinez’s bills, Miami Neurology cannot be awarded appellate attorney’s fees with respect to that issue. See Fla. Stat. §627.428(1). However, Miami Neurology prevailed with respect to the first issue above.

We direct the trial court to enter an order conditionally granting appellate attorney’s fees with respect to the first issue on appeal only, contingent on Miami Neurology being the prevailing party at the conclusion of the case. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 475 n.3 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2252c]; Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994).

FOR THESE REASONS, the order granting final judgment in favor of Appellee is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

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¹See Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D694a] (holding that under a fundamental principle of contract construction, a narrow and specific term in a contract must control over a broader and general expression).