17 Fla. L. Weekly Supp. 1180b
Online Reference: FLWSUPP 1712LOPEInsurance — Personal injury protection — Denial of benefits — Date of cut-off letter based on independent medical examination is not date through which insured is entitled to receive benefits as matter of law — Question of appropriate date for suspension of benefits is issue for jury — Discovery — Depositions — Expert witness fees — No error in awarding expert witness fees for deposition of treating physician
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ASCLEPIUS MEDICAL INC., a/a/o ANA LOPEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-019 AP and 09-172 AP, Consolidated. L.C. Case No. 08-5291 CC 25. August 2, 2010. On appeal from a decision rendered by the Miami Dade County Court Judge, Lawrence King. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company/Trial Division, for Appellant. Kevin W. Whitehead, for Appellee.
(Before SCHUMACHER, CARDONNE AND GENDEN, JJ.)
(GENDEN, Judge.) This is a PIP claim brought against United Automobile Insurance Company for the payment of medical bills by the insured’s assignee, Asclepius Medical Inc. The lower court entered summary judgment in favor of Asclepius. In addition, this lower court required the appellant to pay an expert witness fee to the physician who treated the claimant (injured party). United Automobile has appealed the granting of the summary judgment and the awarding of an expert witness fee to the injured person’s doctor.
On August 26, 2007, the insured, Ana Lopez, was involved in an auto accident. She was treated by two doctors, Dr. Perez a Medical Doctor, and Dr. Cortes, a chiropractor. Both of these doctors filed affidavits stating that all treatment from August 27, 2007 through December 4, 2007 were reasonable related and necessary (RRN). In response, the insurer filed the affidavit of Dr. Roveto, a Medical Doctor, who stated no further treatment of a medical nature was reasonable related and necessary (RRN) after October 22, 2007, the date of his medical IME. Also the insurer relied on an affidavit of Dr. Russo, a Chiropractor, who stated no further chiropractic care was reasonable related or necessary after October 24, 2007, the date of his IME.
On November 21, 2008, a hearing was held on the assignee’s motion for summary judgment. The assignee argued that the dates to be considered are November 6, 2007 as to medical treatment, the date of the cut off letter. As to chiropractic care, the assignee argued the date of November 9, 2007, the date of the chiropractic cut-off letter. The trial court agreed with the assignee finding as a matter of law that treatment from August 27, 2007 through November 9, 2007 was reasonable related and necessary (RRN).
There have been many cases that have held that the date of the cut-off letter is not as a matter of law the date through which the claimant is entitled to receive benefits. Rather many courts have held that RRN is a fact question to be decided by the trier of fact. We also so hold. What makes this case distinctive is that the Insurer did not receive “the subject reports from the IME doctors before cutting off the benefits”, although the reports were done on the day of the exams. The insurer argues that a valid report was created at the time of the IME’s and therefore they are not violative of Fla. Stat. 627.736(7)(a).
There is no question that at the time the insurer sent their cut-off letters of November 6, 2007, and November 9, 2007, they were in receipt of the IME reports. We do not believe that this “distinction” is of much consequence because the issues of the appropriate date for the suspension of benefits is still an issue for a jury. Therefore, we reverse the summary judgment and remand for trial. As to the awarding of expert witness fees to the treating physician, we affirm. See Progressive Express Insurance Co. v. Professional Medical Group a/a/o Ugalde, 10 Fla. L. Weekly Suppl. 973a Fla.Dade Ct. Ct. 2003. (CARDONE, J., dissents.)
