17 Fla. L. Weekly Supp. 162b
Online Reference: FLWSUPP 1703ROMO
Insurance — Personal injury protection — Denial of benefits — Peer review — To deny payment of PIP benefits, insurer is not required to provide valid report mandated by section 627.736(7)(a)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. TRAUMA & REHAB ASSOCIATES, a/a/o JUAN ROMO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-548 AP & 08-232 AP. L.T. Case No. 06-20773 CC 25. December 15, 2009. An appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Chelin V. Sampedro, Chelin V. Sampedro, P.A., for Appellee.
(Before DIAZ, CUETO, and ARZOLA, JJ.)
(PER CURIAM.) In this breach of contract action for Personal Injury Protection benefits, we are required to reverse the trial court’s entry of summary judgment in favor of the Appellee, Trauma & Rehab Associates a/a/o Juan Romo (“Trauma”), and against the Appellant, United Automobile Insurance Company (“United Auto”), as well as the granting of Trauma’s attorney fees, based on the trial court’s erroneous interpretation of sections 627.736(4)(b) & 627.736(7)(a) of the Florida Statutes. Our review is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
The trial court did not admit into evidence United Auto’s peer review and accompanying affidavit of Dr. Bruce Simon — which, from our view, clearly disputed whether some of the insured’s treatment at issue was reasonable, related and necessary — based on the proposition that the review and the affidavit was not a “valid report” that would satisfy the requirements of section 627.736(7)(a). However, it is clear that this subsection is not controlling in cases, as present, where the insurer has denied payment. When an insurer has denied payment, subsection 627.736(4)(b) is controlling. To deny payment under subsection 627.736(4)(b), the insurer does not have to do provide a “valid report” as mandated in subsection 627.736(7)(a). See United Auto Ins. Co. v. Garrido, 34 Fla. L. Weekly D2216 (Fla. 3d DCA October 28, 2009); United Auto Ins. Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 34 Fla. L. Weekly D2051 (Fla. 3d DCA October 7, 2009).
Accordingly, the summary judgment granted in favor of Trauma is hereby reversed. We are also required to reverse the entry of attorney fees for Trauma and against United Auto. See Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999). The matter is remanded back to the trial court for further proceedings consistent herewith. REVERSED and REMANDED.
