17 Fla. L. Weekly Supp. 890a

Online Reference: FLWSUPP 1710BEND

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Insurer was not barred from submitting affidavit of independent medical examiner in defense of provider’s motion for summary judgment although examination did not take place until after insured had completed all treatment — Depositions — Expert witness fees — Treating physician entitled to expert witness fees for deposition taken pursuant to rule 1.390 — Award of attorney’s fees to prevailing provider reversed in light of appellate court’s reversal of final judgment in provider’s favor

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA INSTITUTE FOR PAIN, INC., a/a/o ERIC BENDROSS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-587 AP. L.T. Case No. 08-2294 CC 05. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Florida, Shelley J. Kravitz, Judge. Counsel: Michael J. Neimand of United Automobile Insurance Company, Office of General Counsel for United Automobile Insurance Company, for Appellant. Marlene S. Reiss, for Appellee.

(Before SCHUMACHER, CARDONNE ELY and GENDEN, JJ.)

(SCHUMACHER, M., Judge.) Reversed in part, Affirmed in part.

The United Automobile Insurance Company (“United Auto”) appeals a final judgment in favor of Florida Institute for Florida Institute for Pain, Inc., a/a/o Erick Bendross. (“Florida Institute”). Below, Florida Institute sued United Auto for failure to pay Personal Injury Protection (“PIP”) benefits due pursuant to contract. The ultimate dispute rested upon whether the treatment was reasonable, related, and medically necessary.

Florida Institute filed a motion for summary judgment supported by the affidavits of Drs. Ruskowskis and De la Portilla. In response, United Auto filed the affidavit of Dr. Glatzer, with an independent medical examination (IME) report and peer review report attached.

At trial, Florida Institute sought to exclude Dr. Glatzer’s affidavit arguing that it was conclusory and not factually supported. Florida Institute also argued that the IME had taken place after a majority of the treatment had been rendered. The insured, Eric Bendross, had completed all his treatment by August 29, 2007. About two weeks later, Dr. Glatzer performed the IME on September 14, 2007. Dr. Glatzer concluded that none of the treatment rendered was reasonable, related or medically necessarily. United Auto summarily mailed out two letters suspending benefits on September 21, 2007, and September 28, 2007.

The trial court granted Florida Institute’s motion to exclude Dr. Glatzer’s affidavit and subsequently awarded final summary judgment against United Auto.

Summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

If an insurer denies a claim completely, (that is refuses to make any payments whatsoever), or denies one or more discrete charges or claims, the insurer’s actions constitute a denial of benefits. In such instances section 627.736(4) of the Florida Statutes applies. See Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Auto. Ins. Co., 21 So. 3d 858, 860 (Fla. 3d DCA 2009).

The Third District holds that proof procured to support the denial of personal injury protection claim can be provided at any time. United Auto. Ins. Co. v. Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009) (doctor’s peer review report filed by insurer in support of its denial of PIP benefits was not untimely, even though filed nearly three years after insurer denied insured’s claim and more than two years after insured brought suit for breach of the insurance contract).

In Perez, the plaintiff filed suit against the insurer in 2004 for breach of contract for failure to pay any of her medical bills. In 2006, the insurer filed a report that had been prepared by a doctor in 2005. That report stated that none of the care rendered was reasonable, necessary or related. The Perez plaintiff argued that the report was untimely, and successfully moved to strike the peer review report and to prohibit the doctor from testifying. Without the doctor’s peer review report, the insurer had no evidentiary support for its claim that the plaintiff’s treatment was not reasonable, related or necessary. Florida’s Third District Court of Appeals disagreed. In Perez, the Third District held:

In these cases we concluded that where, as here, an insurer fails to pay any or some of an insurer’s medical bills, section 627.736(4)(b) of the Florida Statutes applies. That provision requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; that such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise; and that such proof may be provided at any time.

Id. at 887.

Similarly, in United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 21 So. 3d 60, 67 (Fla. 3d DCA 2009), the Third District Court stated, in pertinent part:

[A]lthough Bermudez,¹ in dicta, suggests that Viles² also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment. Viles, 726 So. 2d at 321 (citations omitted). . . .

Id.

In a subsequent case, State Farm Mut. Auto. Ins. Co. v. Hyma Medical Center, Inc., 22 So. 3d 699, 700-01 (Fla. 3d DCA 2009), the Third District explains:

This case is a denial case, where the insurer never paid any of the claims. A denial case is governed by paragraph 627.736(4)(b), Florida Statutes. As explained in Santa Fe,³ paragraph (4)(b) pertains to circumstances where the insurer has either reduced, omitted, or declined payment of PIP claims that are reasonable, necessary, and related

By contrast, paragraph 627.736(7)(a), Florida Statutes, is applicable in a withdrawal case. In a withdrawal case the insurer has made payments but then seeks to withdraw all future payments for the same injury. In that situation paragraph (7)(a) sets forth the necessary requirements that an insurer must satisfy before it may withdraw future PIP benefits. (citations omitted)

In this instance of an outright denial of benefits, we find that United Auto was not barred from submitting the doctor’s affidavit in defense of summary judgment. Dr. Glatzer’s affidavit concluded that none of the treatment was reasonable, related or medically necessary and thereby created a genuine issue of material fact regarding the treatment of the insured. Accordingly, the trial court erred in granting summary judgment in favor of Florida Institute.

Expert Witness Fees

The second issue on appeal concerns expert witness fees. Prior to the final judgment, United Auto sought to depose the doctors without paying expert witness fees on the grounds that the treating doctors were fact witnesses and not expert witnesses. Florida Institute filed motions for protective order seeking an expert witness fee for the doctors prior to deposition. The trial court granted Florida Institute’s motions, determining that both doctors are expert witnesses and entitled to an expert witness fee of $350 per hour to be paid prior to the depositions.

United Auto argues that treating physicians are not subject to discovery rules governing expert witnesses because did they did not acquire their expert knowledge for the purpose of litigation but rather in the course of making their patients well. We find United Auto’s defense inapposite to the instant issue and distinguish the cases upon which it relies. See, e.g., Fittipaldi USA Inc., v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005), Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981) and Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998).

These cases do not address whether a treating physician is entitled to an expert witness fee for a deposition taken pursuant to Florida Rule of Civil Procedure 1.390. While the three cases are related to expert witness issues at large, they are inapposite to expert witness fees under Rule 1.390. Fittipaldi appears to have been cited by United Auto because it referenced both Ryder and Frantz and noted, “It is entirely possible that even a treating physician’s testimony could cross the line into expert testimony.” Fittipaldi, 905 So. 2d at 186. The Frantz court held that Rule 1.280(b)(3) did not apply to a treating dentist, although he is an expert, because he did not acquire is expert knowledge for the purpose of litigation but simply in the course of treating the patient. The Ryder case addressed expert witness issues under 1.280(b)(3) (discovery) and Ryder (Rule 1.280) (one expert per specialty rule). None of these cases discuss whether a treating physician must be paid a fee for his deposition pursuant Rule 1.390. We find that the trial court correctly awarded expert witness fees to the doctors for their testimony. Doctors are entitled expert witness fees when they participate as witnesses for depositions. See Progressive Express Ins. Co v. Professional Medical Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Jud. Cir. App. 2003); United Auto. Ins. Co. v. Cereceda & Assoc., D.C., P.A., a/a/o, Onica Blaize, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Jud. Cir. App. 2008).

Finally, it follows that the trial court’s award of attorney’s fees is also reversed pursuant to section 627.428(1) of the Florida Statutes. “Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees.” Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).

Accordingly, this matter is remanded to the trial court for proceedings consistent with this ruling. (CARDONNE ELY, GENDEN, JJ. concurring.)

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¹United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213.

²United Auto. Ins. Co v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998).

³United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 21 So. 3d 60, 67 (Fla. 3d DCA 2009).