17 Fla. L. Weekly Supp. 1178b
Online Reference: FLWSUPP 1712BARC
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Sufficiency — Error to exclude peer review affidavit filed in opposition to medical provider’s motion for summary judgment where no physical examination was required, and challenge to reasonableness, relatedness and medical necessity of treatment does not require valid medical report under section 627.736(4)(b)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. QUALITY MEDICAL CENTER, INC. as assignee of Briceida Barcenas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-644 AP. L.C. Case No. 04-2043 CC 26. August 4, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Gloria Gonzalez-Meyer, J. Counsel: Michael J. Neimand and Lara Edelstein, Office of the General Counsel, United Automobile Insurance Company, Trial Division, for Appellant. Jose R. Iglesia, Iglesia and Associates., and Chelin Esther Vazquez, for Appellee.
(Before PINEIRO, HOGAN SCOLA, and JIMENEZ, JJ.)CONFESSION OF ERROR
(PER CURIAM.) This is an appeal of a summary judgment order entered by the county court in Miami-Dade County in favor of the Appellee, Quality Medical Group, Inc., a/a/o Briceida Barcenas (“Quality Medical”) on the issue of reasonableness, relatedness and necessity (“RRN”). Now, Quality Medical files a confession of error as to the order granting summary judgment and the final judgment entered therein.
An insurer can contest the RRN of treatment rendered under section 627.736(4)(b). See United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (en banc); see also Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. The trial court erred in excluding the testimony of Dr. Millheiser, where no physical examination was required, and where section 627.736(4)(b) does not require a “valid report.”
Based on the aforementioned reasons, Quality Medical’s confession of error is deemed well taken.
Thus, this Appellate Court reverses and remands the summary judgment finding made below that the affidavit of Dr. Millheiser failed to create a genuine issue of material fact regarding the reasonableness, relatedness and necessity of the treatment provided.
We reverse the lower court’s order awarding Quality Medical’s attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney’s fee award in the lower court, based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
Therefore, the Appellee’s Motion for Attorney’s Fees is denied. Because Appellee is not the prevailing party in this appeal, appellate attorney’s fees are not attainable. § 627.428(1), Fla. Stat. (2009).
For these reasons, we direct the lower court to vacate the order granting final judgment in favor of Appellee, and this cause is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
