17 Fla. L. Weekly Supp. 1177b
Online Reference: FLWSUPP 1712VALD
Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Summary judgment — Opposing affidavit — Error to fail to consider peer review affidavit because it was not obtained prior to denial of benefits — Medical report is not condition precedent to complete denial or partial reduction of claims
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. ROLANDO VALDEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-455 AP. L.C. Case No. 06-8260 SP 25. August 3, 2010. On Appeal from the County Court, Miami-Dade County, Florida, Saenz, Nuria, J. Counsel: Michael J. Neimand, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before LOPEZ, MURPHY, and DIAZ, JJ.)
(DIAZ, Judge.) This is an appeal of a Final Summary Judgment entered by the county court in Miami-Dade County in favor of the Appellee, Roland Valdez. Mr. Valdez sought Personal Injury Protection (PIP) benefits from United Automobile Insurance Company (United Auto) for medical services he received as a result of an automobile accident that occurred on December 9, 2005. He began receiving medical treatment for his injuries immediately on the date of the accident and continued his treatments through March 14, 2006.
On February 6, 2006, Dr. Pedro Musa-Ris, M.D. conducted an Independent Medical Examination (IME) of Mr. Valdez. In his report, Dr. Musa-Ris opined that further treatment beyond February 6, 2006 (the date of the IME) was not medically necessary. Subsequently, United Auto sent Mr. Valdez an IME “cut-off” letter dated February 21, 2006, which was not received by Mr. Valdez until March 15, 2006.
Then on April 15, 2006, United Auto procured the “peer review” of Dr. Richard L. Glatzer. Dr. Glatzer opined that none of the pre February 6, 2006 treatments was reasonable, related, or necessary (RRN). Consequently, United Auto rejected Mr. Valdez’ entire claim for personal injury protection (PIP) benefits.
Mr. Valdez filed a suit against United Auto alleging United Auto’s failure to pay the claim. United Auto answered the complaint and filed affirmative defenses. During the course of the litigation, Mr. Valdez filed a motion for summary judgment. In support of the motion, Mr. Valdez filed the affidavit of the treating physician, Dr. Lopez. In opposition to the motion for summary judgment United Auto presented Dr. Glatzer’s “peer review” which the trial court did not consider.
The trial court concluded that United Auto did not obtain the report “as a condition precedent prior to the denial/withdrawal of the claim1.” Therefore, the trial court rejected Dr. Glazter’s report and found in favor of Mr. Valdez. A separate Final Judgment which awarded Mr. Valdez damages, pre-judgment interest, and attorney fees was also entered.
United Auto appealed the trial court’s Final Summary Judgment and Final Judgment in the instant case. We have jurisdiction to review this matter pursuant to Florida Rule of Appellate Procedure 9.030 (c)(1)(A). The standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a].
Summary judgment is appropriate if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Id. In the instant case, Mr. Valdez sought to establish the medical treatment he received was reasonable, related, and necessary. He filed the affidavit of the treating physician in support of his claim. On the other hand, United Auto asserted that the treatment was not medically related, reasonable, or necessary. United Auto filed the medical report of Dr. Glatzer, in opposition to the motion.
The trial court did not consider Dr. Glatzer’s affidavit based upon Bermudez and United Auto v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D14a]. The Third District Court of Appeal clarified its holdings in those cases in Partners v. United Automobile Insurance Company, 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. In Partners, just as in the instant case, the insurer did not make any payments, “claiming that no treatment was reasonable, related or necessary.” Id. at 863. The Partners court stated that neither Bermudez nor Viles “require a 627.736(7)(a) report as a condition precedent to either a complete denial or partial reduction of an insured’s bills or claims.” Id.
To the extent that the trial court did not consider Dr. Glatzer’s report, it did not determine whether an issue of material fact existed. As a result, Mr. Valdez was not entitled to Final Summary Judgment. For these reasons, the ruling granting Final Summary Judgment in favor of Appellee, Rolando Valdez, is REVERSED. Additionally, the Appellee is not a prevailing party pursuant to Section 627.428(1), Florida Statutes (2010). Therefore, the Final Judgment awarding attorney’s fees and costs to the Appellee is REVERSED. The cause is REMANDED to the trial court for further proceedings consistent with this opinion. (LOPEZ AND MURPHY, JJ concur.)
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1The trial court’s written Final Summary Judgment stated: Pursuant to United Automobile v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA [2008]) [33 Fla. L. Weekly D1201a] the Court cannot consider the affidavit of Dr. Glatzer because the peer review was not obtained as a condition precedent prior to the denial/withdrawal of the claim.
