17 Fla. L. Weekly Supp. 733a
Online Reference: FLWSUPP 1709ULLOInsurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in striking affidavit and peer review report offered in opposition to medical provider’s motion for summary judgment on ground that peer review must be supported by physical examination of insured — Trial court erred in using date of letter suspending benefits based on independent medical examination to suspend benefits where insurer had proof as of date of IME that no further treatment would be reasonable, related or necessary — Discovery — Depositions — Expert witness fees — No error in determining that treating physician was entitled to expert witness fees for his deposition testimony
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. WILFREDO ULLOA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-603 AP & 09-387 AP. L.C. Case No. 07-5489 SP 25. April 27, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Andrew S. Hague, J. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez and Best and Carlos Lopez-Albear, for Appellee.
[Certiorari denied at 35 Fla. L. Weekly D1303a.]
(Before VENZER, CUETO and ARZOLA, JJ.)
(CUETO, J.) This is an appeal from a final summary judgment in favor of Appellee Wilfredo Ulloa (“Ulloa”). Ulloa, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. United Auto argues three issues on appeal and maintains the trial court erred with respect to each issue.
The first matter on appeal concerns the trial court’s grant of Ulloa’s motion for summary judgment as to United Auto’s affirmative defense as to the reasonableness, relatedness and necessity (“RRN”) of the treatment rendered by treating chiropractic physician, Alejandro O. Nalda, D.C. (“Dr. Nalda”).
Dr. Nalda attested that in his opinion, all of the treatment rendered was RRN. Ulloa attached the affidavit of Dr. Nalda to his motion. Ulloa attested that he was not notified by United Auto of their decision to withdraw benefits until May 19, 2005. Ulloa executed his own affidavit and attached it to the summary judgment motion as to RRN.
In opposition, United Auto filed the affidavits of Evan A. Rosen, D.C. (“Dr. Rosen”), who performed the Independent Medical Examination (“IME”), and Joseph Marfisi, D.C. (“Dr. Marfisi”), who performed the peer review. Dr. Rosen attested that he performed an IME on Ulloa and had written a report. The IME took place on March 24, 2005. Subsequent to the completion of the examination, Dr. Rosen opined that as of March 24, 2005, “no further medical treatment was reasonable, medically necessary or related to the motor vehicle accident that allegedly occurred on February 15, 2005.” Dr. Marfisi opined that many of the fees charged for services rendered were in excess of what was customarily charged. He further opined that treatment rendered by Dr. Nalda in excess of 8 visits was not RRN.
At the summary judgment hearing, the trial court refused to consider and struck the affidavit and peer review of Dr. Marfisi, believing that a physical examination was required to reduce or deny benefits. It granted Ulloa’s motion, leading to this first issue on appeal.
The second matter on appeal concerns the trial court’s use of the date May 4, 2005, the date of United Auto’s IME suspension letter, to suspend benefits. United Auto argued that if the trial court was going to strike the affidavit of Dr. Marfisi and not consider his peer review, then the cutoff date should have been the date the IME was performed, not the date of the suspension letter.
The third matter on appeal concerns whether the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of Dr. Nalda. Ulloa had filed a motion for protective order. United Auto filed a written objection, contending that a treating physician would not be entitled to an expert witness fee. The trial court agreed with Ulloa and granted the motion, ordering United Auto pay $350.00 as an expert witness fee.
The trial court entered final judgment after granting summary judgment to Ulloa as to United Auto’s remaining affirmative defenses. The trial court subsequently awarded Ulloa’s counsel, attorney’s fees, costs and pre-judgment interest. This appeal followed.
As to the first issue on appeal, we hold that United Auto had reasonable proof that the treatment was not RRN. An insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 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’s obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applies only to withdrawal of benefits — as opposed to denial or reduction of payment to a treating physician. United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60, 66-67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. The Third District Court of Appeal has held that section 627.736(7)(a) no longer requires a physical examination of the insured to withdraw benefits. 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]. We find that the trial court erred in requiring a physical examination was required, when striking the affidavit and peer review report as proof to defend against summary judgment and, therefore, reverse.
As to the second issue on appeal, we find that Ulloa’s claim of entitlement to already incurred medical expenses requires a purely factual determination of whether his accrued expenses were RRN. Cruz v. Union General Ins., 586 So. 2d 91, 92 (Fla. 3d DCA 1991) (affirming dismissal of action for declaratory relief where insured sought to challenge whether a section 627.736(7)(a) IME report could be used to deny already accrued medical expenses). The statute makes no reference to a requirement that an IME suspension notice must be sent to an insured, for a withdrawal of benefits to be effective. The only mention of such a notice occurs in the statute, when section 627.736 indicates that an insured should attach a copy of an IME suspension notice, if it exists, to a demand notice when the insured is contesting denial of payment.
In a case involving analogous facts, an insured’s claim of waiver by an insurer due to an erroneous action and a misleading notice issued by the insurer, could not be used to force an insurer to pay PIP benefits it has no obligation to pay. United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 990 So. 2d 574 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1846b] (holding that where insurer sent untimely submitted bills to an independent physician for review in error, and failed to specify in an Explanation of Benefits (“EOB”) that the bills were not paid due to late submission, did not waive insurer’s defense that the untimely bills were not due and payable by statute). Delay and failure to obtain reasonable proof within 30 days does not serve to foreclose the ability of an insurer to contest the RRN of bills as a defense at a later time. See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001) [26 Fla. L. Weekly S747a]. The Fourth District Court of Appeal has similarly held that “[i]naction by the insurer does not result in the insurer having to pay a bill which it otherwise would not have to pay.” AIU Insurance Co. v. Daidone, 760 So. 2d 1110, 1111 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a]; see also United Auto. Ins. Co. v. Perez, 21 So. 3d 886 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a] (holding that United Auto was permitted nearly three years later, to rely on a peer review obtained a year and a half after the original denial, to support its defense at summary judgment that bills for treatment rendered prior to the insured’s IME, were not RRN).
This Court recognizes that the current status of the law, is that bills that are not RRN, are never required to be paid. Partners in Health Chiropractic, 21 So. 3d at 864 [34 Fla. L. Weekly D2177a]. By relying on the date of the IME letter, the lower court incorrectly found that United Auto should be made to pay bills it did not have to pay, due to inaction prior to writing the IME suspension letter. Thus, the trial court shifted the focus away from whether the insurer had proof to contest the bills, to the insurer’s actions towards an insured, taking an approach which was clearly rejected by the Florida Supreme Court in Rodriguez and the district courts in Garrido, Perez and Daidone.
The reference to when a bill is “overdue” or “due” in section 627.736 only refers to statutory penalties for unpaid bills for treatment that is RRN — the Third District Court of Appeal has clearly held treatment can be contested at any time without limitation. Millennium Diagnostic Imaging Center, 12 So. 3d at 246-247 [34 Fla. L. Weekly D913c] (“If a medical bill is submitted for treatment that is not reasonable, related, or necessary, there can possibly be no benefits ‘due’ under the policy, and therefore, that claim cannot be deemed ‘overdue.’ ”) We hold that it was error for the trial court to use the date of the IME suspension letter when United Auto had proof as of the day of the IME that no further treatment would be RRN.
As to the third issue, United Auto’s arguments are not convincing. See United Auto. Ins. Co. v. Eduardo Garrido, DC, PA, 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b] (affirming without discussion, the correctness of a non-final order granting the treating physician an expert witness fee for his deposition); Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1171a] (holding that the Third District Court of Appeal has not established a rigid “black letter rule” that treating physicians can never be considered an expert under the “one expert-per-specialty rule”). Ulloa argues that Dr. Nalda serves as an expert under Rule 1.390(a). That rule defines an expert as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about a subject upon which called to testify.” Fla. R. Civ. P. Rule 1.390(a) (2009). Having reviewed the affidavit of Dr. Nalda, we find that Dr. Nalda clearly fits this definition.
Ulloa argues that Fla. R. Civ. P. 1.390(c) entitles Dr. Nalda to an expert witness fee. We agree with Ulloa’s reliance upon Progressive Express Ins. Co. v. Professional Medical Group, Inc., which held that, pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). Rule 1.390 and not Rule 1.280 or the cases cited by United Auto, controls this fee dispute. The rule provides that an “expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the Court may determine.” Fla. R. Civ. P. Rule 1.390(c) (2009). There appears to be no exception to this rule.
No transcript or stipulated statement has been provided of the hearing and in the absence of both, we must presume the findings of the trial court finding Dr. Nalda to be an expert and the amount awarded as a fee are correct, because we are unable to evaluate its findings otherwise. Smith v. White, 816 So. 2d 209 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1128c]; All American Soup & Salad, Inc. v. Colonial Promenade, 652 So. 2d 911 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D744c]; Hirsh v. Hirsh, 642 So. 2d 20 (Fla. 5th DCA 1994). As a result, our review is limited to determining whether there are any legal errors which appear on the face of the order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]; Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D711a]; Katowitz v. Katowitz, 684 So. 2d 256, 257 n. 1 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D2558b]. United Auto agreed at oral argument that our review was limited to determining whether the trial court committed legal error.
The Fourth District Court of Appeal’s decision in Haldane v. Hall, provides us with guidance in this matter. 234 So. 2d 739 (Fla. 4th DCA 1970). In Haldane, the counsel for the defendants noticed the plaintiff that he “intended to take the deposition” of one of “plaintiff’s treating physicians.” Id. at740. The defendants sought the “doctor’s knowledge gained in treating the plaintiff.” Id. The district court reasoned that “the defendants were clearly aware” that “the doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use of the deposition for evidence at trial.” Id. In the instant case, the trial court in granting the motion, considered Dr. Nalda’s qualifications, made its findings and determined that he qualified as an expert. See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987) (stating that the “qualification of an expert witness and the perimeters of his expertise are conclusions of fact to be determined advisedly by the trial judge”).
Having reviewed Rule 1.390, Haldane, and Progressive Express, wefind no error in the lower court’s determination that Dr. Nalda is an expert witness and that the act of deposing him entitles him to a fee. See Eppler v. Tarmac America, Inc., 695 So. 2d 775, 777 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D1559d] (remanding and directing the trial court to award an expert witness fee where cross-appellee conceded that the expert witness’s deposition appearance entitled him to a “reasonable fee”). Therefore, we affirm the trial court’s non-final order requiring United Auto to pay expert witness fees prior to taking Dr. Nalda’s deposition.
Thus, we REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Marfisi failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Consequently, Ulloa is not entitled to summary judgment as a matter of law as to RRN. This finding is dispositive of the issue as to the IME cut-off date, since Dr. Marfisi’s affidavit has created a genuine issue of material fact as to the RRN of treatment rendered for dates of service both prior and subsequent to March 24, 2005, the date of the IME.
We AFFIRM the lower court’s grant of the motion for protective order, awarding expert witness fees for Dr. Nalda’s deposition.
Lastly, we REVERSE the lower court’s order awarding Ulloa attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award 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].
Therefore, the Appellee’s Motion for Attorney’s Fees is DENIED. Because Appellee is not the prevailing party in this appeal, appellate attorney’s fees are not attainable. § 627.428(1), Fla. Stat. (2009).
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.
AFFIRMED in part, REVERSED in part. (VENZER and ARZOLA, J.J. concur.)
