17 Fla. L. Weekly Supp. 1184b
Online Reference: FLWSUPP 1712GONZ
Insurance — Personal injury protection — Denial of benefits — Valid medical report — Trial court erred in not considering affidavit and peer review report offered in opposition to insured’s motion for summary judgment on ground that peer review was not supported by independent medical examination of insured — Production of valid report is not required to deny benefits, only to withdraw already commenced payments
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. LIANE GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-061 AP and 09-600 AP (Consolidated). L.T. Case No. 07-20972 SP 25 (4). March 22, 2010. An Appeal from the County Court in and for Miami-Dade County, Florida. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Carlos A. Lopez-Albear, Carlos A. Lopez-Albear, P.A., for Appellee.
(Before STANFORD BLAKE, DAVID C. MILLER, and JULIO E. JIMENEZ, JJ.)
CONFESSION OF ERROR
(PER CURIAM.) Appellant United Automobile Insurance Company denied payment to appellee Liane Gonzalez for treatments she sought for injuries ostensibly received from an automobile accident. These treatments were administered by the provider Dr. Gomez.
Appellee submitted a motion for summary judgment on the issue of the reasonableness, relatedness, and necessity of the treatments. Appellant submitted a “valid report” in the form of a peer review report and an affidavit to counter the motion.
Here, Appellant appeals an adverse ruling made against it by the trial court which granted summary judgment in favor of the Appellee, under the auspices of the absence of a genuine issue of a material fact. The Appellant’s peer review was not considered because it was not based on an independent medical examination (IME). Now, Appellee files a confession of error, citing to United Automobile Insurance Company v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009).
In the Santa Fe decision, the Third District Court of Appeal reversed a grant of summary judgment by the trial court. It clarified the law, and held that section 627.736(7)(a), Florida Statutes is not implicated when an insurer denies payment for a provider’s treatments (a denial of benefits case). The Third District held that production of a “valid report” is not required to deny the payment of treatments made by a provider. Id at 67. Section 627.736(7)(a), Florida Statutes is to be used when an insurer withdraws already commenced payments for treatments made by a provider (a withdrawal of benefits case).
Since the instant case is a denial of benefits case, reliance on section 627.736(7)(a), Florida Statutes (2007) was not correct A denial of benefits case is governed by section 627.736(7)(b), Florida Statutes (2007). As such, the trial court erred in its ruling. This matter is reversed and remanded to the trial court for proceedings consistent with this ruling.
