17 Fla. L. Weekly Supp. 978a
Online Reference: FLWSUPP 1710ROJA
Insurance — Personal injury protection — Coverage — Medical expenses — Whether treatment after certain date was reasonable, related, and necessary was fact question to be decided by jury in the face of contrary affidavits — Trial court erred in refusing to consider affidavit of peer review physician on ground that report was obtained after suit was filed — New trial required
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida corporation, Appellant, vs. FLORA ROJAS, Appellee. Circuit Court of the Eleventh Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-590 AP & 09-052 AP. L.T. Case No. 07-1252 CC26. July 29, 2010. On appeal from a decision rendered by the Miami-Dade County Court, Gloria Gonzalez-Meyer. Counsel: Michael J. Neimand, Office of the General Counsel of United Automobile Insurance Company/Trial Division, for Appellant. Arnold G. Ginsberg, Jonathan R. Friedland, for Appellee.
(Before GENDEN, SCHUMACHER AND CARDONNE, JJ.)
(GENDEN, Judge.) This is a PIP claim brought against United Auto for the payment of medical bills by the insured, Flora Rojas. The lower court entered a Summary Judgment in favor of Rojas and United Automobile has appealed.
On October 29, 2005, the insured was involved in an auto accident and began medical treatment with two doctors, Dr. Ray a medical doctor and Dr. Jacobs, a chiropractor. All the treatment took place between November 2, 2005 and January 23, 2006. The doctors opined that all treatment was reasonable, related and necessary (RRN). The insurer relied on an IME report and affidavit of Dr. Marfisi, a chiropractor, who opined that all chiropractic treatment after January 5, 2006 was not reasonable related and necessary (RRN). In addition, United relied on an affidavit and peer review report of a doctor Frachtman to defend against the Summary Judgment. On October 29, 2008, the Summary Judgment motion was heard. The lower court refused to consider Dr. Frachtman’s affidavit since his peer review was obtained after the suit was filed. The trial court ruled in favor of the Plaintiff, finding that the Plaintiff was entitled to benefits through January 13, 2006 and January 17, 2006, the dates of the cut off letters.
The insurer argues that question of reasonable related and necessary (RRN) is a fact question to be decided by a jury in the face of contrary affidavits. In addition, United argues that the trial court erred in striking the peer review report of Dr. Frachtman. The insurer took the position that the cut-off date is January 5, 2006, the date when the IME doctors found all subsequent treatment to not be reasonable, related and necessary (RRN).
We agree with United on both issues and remand for a new trial. A jury should be given the responsibility to decide whether or not the benefits should have been withdrawn on January 5, 2006 or some later date, Further, the trial court erred when it failed to consider the peer review report of Dr. Frachtman because it was filed after the suit was filed. We agree with United that our Supreme Court’s ruling in United Automobile v. Rodriguez, 808 So. 2d 82 (Fla. 2001) is controlling. As a result of our reversal we also reverse the award of attorney’s fees. (Cardonne and Schumacher, JJ., concur.)
