17 Fla. L. Weekly Supp. 515a
Online Reference: FLWSUPP 1707MARQInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Peer review — Appellate court lacks jurisdiction to review purported order excluding peer review report and affidavit from summary judgment evidence where hearing transcript does not clearly demonstrate exclusion, and record contains no order excluding report and affidavit — Withdrawal of benefits — Notice — Error to find that effective date of withdrawal of benefits was date of letter suspending benefits based on independent medical examination, not date that IME physician concluded that further treatment would not be reasonable, related or necessary
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC., a/a/o FERNANDO T. MARQUEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-521 AP. L.C. Case No. 07-20481 CC 25. April 8, 2010. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Andrew S. Hague. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Virginia M. Best, Lopez & Best, for Appellee.
(Before MUIR, SHAPIRO, and COHEN LANDO, JJ.)
(PER CURIAM.) United Automobile Insurance Company’s (“insurer”) physician performed an independent medical examination upon Fernando T. Marquez (“claimant”) on June 13, 2007 and concluded that further medical treatment would not serve a reasonable, related, or necessary purpose. The insurer mailed a letter, dated June 28, 2007, explaining that it decided to suspend personal injury protection benefits for medical care provided after June 13, 2007. The trial court granted summary judgment for medical care provided through June 28, 2007, the date on the letter notifying the claimant that the insurer suspended personal injury protection benefits.
Summary judgment becomes appropriate when “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file 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) (emphasis added). The “general ‘standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo’.” Shaw v. Tampa Electric Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)). Jurisdiction lies with us to review this post-judgment appeal. §26.012(1), Fla. Stat. (2007).
In its first point on appeal, the insurer asserts that the trial court erred by excluding the peer review report and affidavit because the insurer obtained them“after ProMed [medical provider] filed this lawsuit”(emphasis added). The trial judge’s statements indicated a propensity to strike the peer review because the insurer untimely submitted it. See Hr. Tr. 18:13-18, Oct. 10, 2008. However, the hearing transcript did not clearly demonstrate that the trial court actually excluded the peer review report from summary judgment evidence. The appellate record contains no written order demonstrating that the trial court specifically excluded the peer review report from summary judgment evidence. Furthermore, in the summary judgment order, the trial court did not clarify whether it excluded or even considered the insurer’s section 627.736(7)(a), Florida Statutes, peer review report and affidavit as summary judgment evidence. In the statement of the case and facts, the initial brief’s argument section, and the reply brief, the insurer did not direct this panel to this purported order’s location in the appellate record. Because the appellate record does not provide a non-final order excluding the peer review report and affidavit from summary judgment evidence, we lack jurisdiction to review this purported order. See United Auto. Ins. Co. v. Maria Tejada, 17 Fla. L. Weekly Supp. 78a (Fla. 11th Cir. Ct. Oct. 6, 2009), cert. den., 3D09-3527 (Fla. 3d DCA Jan. 8, 2010), (finding jurisdiction lacking where “the appellate record does not indicate that the county court rendered an order resolving the motion”).
In its second issue on appeal, the insurer contended that the trial court erroneously concluded “that the effective date of an independent medical examination (IME) is the date of the IME cutoff [benefits suspension] letter as opposed to the date of the examination.” Florida’s personal injury protection statutes, §§ 627.730-627.7405, Fla. Stats. (2008), “do not require the insurance company to provide notice to the insured, let alone a specific time period as to when the insured should be notified that further medical treatment is not reasonable, related, or necessary.” United Auto. Ins. Co. v. Prof’l Med. Group, Inc., 16 Fla. L. Weekly Supp. 389a (Fla. 11th Cir. Ct. Mar. 12, 2009) (Butchko, J.), cert. den., 3D09-1649 (Fla. 3d DCA Jan. 15, 2010). The benefits suspension date becomes effective on the date when the insurer’s independent medical examination physician concludes that further medical treatment serves no reasonable, related, or necessary purpose. Id.
Here, the insurer’s physician performed an independent medical exam on June 13, 2007 and concluded that the medical treatment became unreasonable, unrelated, or unnecessary. Pursuant to Prof’l Med. Group, the benefits suspension date became effective on June 13, 2007. The trial court granted summary judgment for the medical provider to include payments for medical care provided after the June 13, 2007 benefits suspension date. When the trial court rendered the summary judgment order, the circuit appellate court had not yet rendered Prof’l Med. Group, thus the trial court did not benefit from Prof’l Med. Group‘sguidance. The law “ ‘in effect at the time an appeal is decided govern[s] the case even if there has been a change since time of trial’.” Nash v. Gen. Motors Corp., 734 So. 2d 437, 440 (Fla. 3d DCA 1999) (citing Lowe v. Price, 437 So. 2d 142, 144 (Fla. 1983)). The summary judgment contravenes the current law by incorrectly finding the insurer liable for the medical care performed after the independent medical examination physician concluded that further treatment would not serve a reasonable, related, or necessary purpose. In a summary judgment proceeding, the factual situation must entitle the moving party “to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Prof’l Med. Group precludes the medical provider from obtaining judgment as a matter of law for unpaid medical treatment provided beyond the June 13, 2007 benefits suspension date. We reverse the final judgment and summary judgment.
The medical provider seeks appellate attorney’s fees pursuant to section 627.428, Florida Statutes. We deny this request for appellate attorney’s fees since the medical provider does not prevail on appeal. § 627.428(1), Fla. Stat. (2009).
Reversed and remanded.
