17 Fla. L. Weekly Supp. 162a
Online Reference: FLWSUPP 1703REST
Insurance — Personal injury protection — Summary judgment — Trial court, in ruling on insured’s motion for summary judgment, erred in making inference in favor of insured that, because independent medical examination report indicated no further treatment was necessary, all prior treatment must have been necessary
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. OLGA RESTREPO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-279 AP AND 08-598 AP. L.T. Case No. 06-014809 SP 25. December 14, 2009. An appeal from the County Court for Miami-Dade County, The Honorable Jacqueline Schwartz presiding. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before Kreeger, Espinosa-Dennis, Scola, JJ.)
(SCOLA, J.) In this PIP case, the trial court entered a final summary judgment in favor of an insured after finding there was no genuine issue of`material fact that her medical expenses were reasonable, necessary or related to a covered automobile accident. We find that genuine issues of material fact remain and reverse.
In support of summary judgment below, the Appellee, Olga Restrepo, relied upon an affidavit of Dr. Arnaldo V. Lopez, which indicated that Ms. Restrepo’s medical expenses were reasonable, related, and necessary. United Auto relied on a peer report prepared by Dr. David B. Goldstein in support of its position that the medical expenses were not reasonable, related or necessary. The peer review sets forth that it was based upon various documents and items, including an independent medical examination (IME) report prepared by Dr. Pedro Musa-Ris. The peer report asserted that all but two medical services were not medically reasonable, necessary, or related to the accident.
Ms. Restrepo’s argument in support of summary judgment was that the peer report was not valid, so that the only evidence on record supported her position that the expenses were reasonable, related, and necessary. She argued that the report was invalid because it allegedly contradicted the IME report. Her position, which the trial court accepted, was that since the IME report indicated that no further treatment was necessary, it implied that the prior treatment she received was necessary. Since the peer review indicated that practically none of the treatment was necessary, it conflicted with the alleged implication in the IME report.
The standard of review when reviewing the entry of summary judgment is de novo. Tropical Glass & Construction Co. v. Gitlin, 13 So. 3d 156, 158 (2009); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “A summary judgment is rendered upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501, 506 (Fla. 1982). In determining whether to grant a motion for summary judgment, the trial court, and the appellate court on review, must view the evidence in the light most favorable to the non-moving party, drawing every possible inference in favor of that party. Termaforoosh v. Wash, 952 So. 2d 1247, 1249 (Fla. 5th DCA 2007). See also Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985); Tropical Glass & Construction Co., 13 So. 3d at 158; Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000); Williams v. Bevis, 509 So. 2d 1304, 1306 (Fla. 1st DCA 1987). “[I]f the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Pennco, Inc. v. Meritor Sav., F.A., 617 So. 2d 739, 739 (Fla. 2d DCA 1993). The movant for a summary judgment must conclusively establish the nonexistence of genuine issues of material fact. Termaforoosh, 952 So. 2d at 1249; Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “The burden for such a movant. . . is extremely heavy in that ‘the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.’ ” Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998) quoting Hodkin v. Ledbetter, 487 So. 2d 1214, 1217 (Fla. 4th DCA 1986).
In the instant case, the court below made an inference in favor of the party moving for summary judgment, instead of the non-moving party. Specifically, the court inferred that because the IME report indicated that no further treatment was necessary, all prior treatment must have been necessary. This was not proper on a motion for summary judgment in which the evidence must be viewed in the light most favorable to the non-moving party. Thus, the trial court’s determination that the peer review was not valid because it was in conflict with the IME report was inappropriate.1 As such, the peer report created a genuine issue of material fact as to the reasonableness, relatedness and necessity of Ms. Restrepo’s medical expenses so that summary judgment should not have been entered.
Accordingly, we REVERSE the order granting summary judgment. (Kreeger and Espinosa-Dennis, JJ. concur.)
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1Also, to the extent that the trial court ruled that the peer review was invalid because the doctor who prepared it did not personally perform an IME, case law subsequent to the trial court’s determination has stated that that is not a basis for invalidating a peer review. See, e.g., United Auto. Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d. 897 (Ha. 3d DCA 2009); United Auto.Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242 (Fla. 3d DCA 2009).
