17 Fla. L. Weekly Supp. 981a
Online Reference: FLWSUPP 1710ROD3
Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Insurer has right to request independent medical examination for sole purpose of withdrawing authorization for future medical treatment — Date of valid IME report is date on which insurer may withdraw PIP benefits, not date of notification of suspension of benefits letter — Because IME report and IME physician’s affidavit raised genuine issue of material fact as to whether medical bills incurred between date of IME report and date of suspension letter were for reasonable, related, and necessary treatment, trial court erred in granting summary judgment in favor of provider for those bills
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC. a/a/o NELSON RODRIGUEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-323 AP. L.C. Case No. 07-018896 CC 25. June 17, 2010. An appeal from the County Court for Miami-Dade County, The Honorable Andrew S. Hague presiding. Counsel: Michael J. Neimand, of Michael J. Neimand, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before SIEGEL, LEESFIELD, SCOLA, JJ.)
(SCOLA, ROBERT N., JR., Judge.) On March 20, 2007, Nelson Rodriguez (“Rodriguez”) sustained injuries in an automobile accident. At the time of the accident, Rodriguez had a valid policy of insurance with Appellant United Automobile Company (“United Auto”) which provided coverage for Personal Injury Protection (“PIP”). From March 22, 2007 through June 20, 2007, Rodriguez received medical treatment from Appellee, Professional Medical Group, Inc., (“PMG”), to whom Rodriguez assigned his PIP benefits.
At the request of United Auto, Rodriguez attended an Independent Medical Examination (“IME”) with Dr. George Rovito on June 7, 2007. Dr. Rovito prepared a report in which he concluded that further treatment would no longer be reasonable, related, or necessary (“RRN”) for the accident in question. Upon obtaining the IME report, United Auto generated a suspension of benefits letter, dated June 15, 2007, terminating benefits retroactive to June 7, 2007, the date of the IME. During the one-week period between the IME and the date of United Auto’s suspension of benefits letter, PMG continued to provide treatment to Rodriguez. United Auto refused to pay any of PMG’s bills for medical treatment provided to Rodriguez after the accident.
As a result of the refusal to pay, PMG filed a complaint against United Auto for failing to pay PIP benefits arising from the accident. United Auto raised as an affirmative defense that it did not owe benefits because the bills for all services through June 7, 2007 were paid and that it was not responsible for payment of the bills incurred after June 7, 2007, since, according to the IME report, further treatment as of June 7, 2007 would no longer be RRN to the injuries incurred in the accident.
PMG filed a motion for summary judgment asserting that United Auto was required to pay for all treatment up until June 15, 2007, the date of the suspension of benefits letter. Although United Auto had initially refused to pay all of PMG’s bills for services provided to Rodriguez, at the time of argument on the summary judgment motion, United Auto represented that it had recently tendered payment to PMG for all bills incurred up until June 7, 2007 (the date of the IME report). Thus, the issue of the RRN of those bills was no longer in dispute. United Auto’s position was that the IME report dated June 7, 2007 raised a genuine issue of material fact as to the RRN of the bills incurred after that date and that summary judgment was, therefore, inappropriate.
In opposition to the motion for summary judgment, United Auto filed the affidavit of the IME doctor, Dr. Rovito, in which he opined that as of June 7, 2007, no further treatment would be RRN. Thus, having obtained said valid medical report stating that medical treatment was no longer RRN, United Auto argued that it was authorized to suspend benefits as of June 7, 2007, the date of the IME report, not as of June 15, 2007, the date United Auto issued the notification of suspension of benefits letter.
The trial court granted PMG’s motion for summary judgment in part and held that the effective date of the withdrawal of payment of benefits was June 15, 2007 — the date that United Auto sent the notification of the suspension of benefits letter — and not June 7, 2007, the date of the IME report. The court also found that the letter raised a genuine issue of material fact as to the medical bills incurred after June 15, 2007 and, thus, were subject to a trial by jury.
United Auto then filed this timely appeal.
The standard of review for an order granting summary judgment is de novo. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). A trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla. 1977). Moreover, this burden to conclusively prove the nonexistence of a material fact is on the moving party. See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966); Williams v. Garden City Claims, Inc., 796 So. 2d 586, 588 (Fla. 3d DCA 2002). Only after this burden has been met does the burden shift to the nonmoving party. See Holl, 191 So.2d at 44 (Fla. 1996). However, the “issue” must be one of material fact, and issues of nonmaterial facts are irrelevant to the summary judgment determination. See Fla. R. Civ. P. 1.510(c); Hancock v. Dept. of Correction, 585 So. 2d 1068, 1070-71 (Fla. 1st DCA 1991), rev. denied, 598 So. 2d 75 (Fla. 1992)(not cited). On appeal, this Court must apply a de novo standard of review to the trial court’s decision granting PMG’s motion for summary judgment since it was based on legal, not factual issues. See e.g. Menendez v. The Palms West Condominium Ass’n, Inc., 736 So.2d 58, 60-61 (Fla. 1st DCA 1999).
The issue in this case is whether the trial court was correct in concluding that, as a matter of law, the effective date of the withdrawal of benefits was June 15, 2007, the date of the letter notifying the Insured that payment for medical benefits was suspended. United Auto contends that the lower court erred in this conclusion, and that the effective date was instead June 7, 2007, the date of Dr. Rovito’s IME report.
Florida Statute section 627.736(7)(a) (2006) establishes an insurer’s right to request, and an insured’s obligation to submit to, a medical examination by a licensed Florida physician whenever the mental or physical condition of an insured is material to any claim that has been or may be made for past or future PIP insurance benefits, where the insurer seeks to determine whether to continue authorizing treatment. The statute requires that, absent the consent of the insured person, the insurer must obtain a valid report by a physician stating that the treatment was not RRN.
Whether the statute authorizes an insurer to request an IME to withdraw medical treatment prospectively only, i.e., for the sole purpose of withdrawing future medical treatment authorization, was decided in United Automobile Insurance Company v. Marucci Wellness Centers, LLC., a/a/o Haraman Sila, 16 Fla. L. Weekly Supp. 503a (2008), a case very similar to the one at bar. Looking to the language of the statute, the Court there noted, “[S]ubsection (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 PIP benefits.’ ” Id. Thus, the Court held that, by its terms, “subsection (7)(a) allows medical examinations not only to determine whether an insured will continue to authorize treatment for the injuries, but also to determine whether it had properly authorized past treatment for injuries.” Id.
In terms of the statute’s requirement that the insurer obtain a valid report as a condition precedent to withdrawing payment with regard to notification, the Marucci court again referred to the language of the statute to conclude, “[i]f the Legislature had intended that the relevant condition precedent be obtaining a valid report and notifying the insured of the 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.” Id. The Marucci court rejected the notion that withdrawal of authorization could only be for future treatment. The statute uses language that “treatment was not RRN.” The statute does not use language “that future treatment would not be RRN.” Marrucci concluded that the language of the statute “clearly demonstrates a legislative intent that the concept of ‘authorization withdrawal’ includes past as well as future treatment.” Id. See also, United Automobile Insurance Company v. Professional Medical Group, Inc. a/a/o Mercedes Valientas, 16 Fla. L. Weekly Supp. 389A (2009).
We agree with the reasoning of Marrucci and hold that the date of a valid IME report is the date on which the insured may withdraw PIP benefits, not the date of the notification of suspension of benefits letter. Because the IME report and affidavit of Dr. Rovito raised a genuine issue of material fact as to the RRN of the medical bills incurred between June 7, 2007 (the date of the IME report) and June 15, 2007 (the date of the letter), we find that granting summary judgment as to those bills was inappropriate. As such we reverse the lower tribunal and remand for proceedings consistent with this opinion.
The insured’s motion for attorney’s fees is denied.
REVERSED and REMANDED. (LEESFIELD, J. concurs. SIEGEL, J. concurs in result.)
