17 Fla. L. Weekly Supp. 416a
Online Reference: FLWSUPP 1706MART
Insurance — Personal injury protection — Denial of benefits — Valid medical report — Error to determine that medical report contesting reasonableness, relatedness and necessity of treatment must be obtained within thirty days and before insured filed suit — Trial court further erred in determining that claim not paid before suit is filed was automatically denied
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. DENISE AMERICA MARTINEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-447 AP. L.C. Case No. 06-13704 SP 25. March 8, 2010. An Appeal from the County Court for Miami-Dade County, Nuria Saenz, J. Counsel: Thomas L. Hunker and Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Carlos A. Lopez-Albear, Law Offices of Carlos A. Lopez-Albear; and Virginia M. Best, Lopez & Best, for Appellee.
[Certiorari denied at 35 Fla. L. Weekly D2013b.]
(Before MICHAEL A. GENDEN, AMY STEELE DONNER, and ARTHUR L. ROTHENBERG, JJ.)
(STEELE DONNER, J.) This is an appeal from a protective order dated May 22, 2008, and final summary judgment dated July 30, 2008, of the county court. Appellee had moved for final summary judgment as to the issue of the reasonableness, relatedness and medical necessity (RRN) of the medical bills under section 627.736(4)(b), Florida Statutes (2006). The trial court granted final summary judgment. The standard of review for the granting of a final summary judgment is de novo. Collections, U.S.A., Inc. v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002).
Appellant argues that the trial court erred by: 1) excluding the affidavit and medical report of Dr. Peter Millheiser on the ground no independent medical examination (IME) existed; and 2) determining that the medical report to contest RRN be obtained before litigation ensued. As to the first argument, we find that this issue was not raised at the final summary judgment hearing below.1 Rather, this issue was raised in opposing Appellant’s motion for rehearing, but no transcript of the rehearing has been submitted for appellate review of this issue.
As to second argument, the trial court determined that the instant case involved a denial of PIP benefits. The trial court relied upon United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) and United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008).2 But, both Viles and Bermudez are a withdrawal of PIP benefit cases. We find that in this denial of PIP benefits case, a material issue of fact existed and that the trial court erred by determining that the medical report must be obtained within the 30 days and before the insured files suit and that a claim is automatically denied if not paid before the insured files suit.
Section 627.736(4)(b) requires only that an insurer has reasonable proof that a rejected claim is unreasonable, unrelated and unnecessary. While a section 627.736(7)(a) medical report may be utilized, it is not required for this purpose. Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So. 3d 858, 861 (Fla. 3d DCA 2009). Specifically, where PIP benefits are denied as opposed to withdrawn, the first obtained language of section 627.736(7)(a) is inapplicable. United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 21 So. 3d 871, 872 (Fla. 3d DCA 2009).
Further, section 627.736(4)(b) clearly imposed on the Appellant a thirty day time period to pay PIP benefits that were due and if those PIP benefits were not paid within the thirty day time period the benefits were overdue. United Auto. Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc., 12 So. 3d 242, 245 (Fla. 3d DCA 2009). But, that statute does not state that a claim is automatically denied. Neither does the statute prohibit the Appellant from asserting that a claim is unrelated, unreasonable or medically unnecessary. That claim may be challenged at any time including subsequent to the thirty-day time period for payment of it. Bermudez, 980 So. 2d at 1217 n. 4.
Rather, under that statute, the Appellant in contesting the claim after 30 days, accepted the risk that if the insured prevailed, it would be liable to pay interest on the claim and the insured’s attorney’s fees. January v. State Farm Mut. Ins. Co., 838 So. 2d 604, 607 (Fla. 5th DCA 2003). Therefore, the Appellant was permitted to rely upon a section 627.736(7)(a) medical report even if the medical report was obtained more than thirty days after the claim was submitted. Millennium Diagnostic Imaging Ctr., Inc., 12 So. 3d at 246.3
Based on the above, we find that the trial court erred below in entering a final summary judgment to the Appellee on the issue of the RRN. The trial court erroneously required the Appellant to obtain a medical report within 30 days and prior to litigation commencing in order to assert the unreasonableness of the claim. Because we find reversible error on that ground, we do not address the issue as to the protective order. Appellee’s request for appellate attorney’s fees under section 627.428(1), Florida Statutes (2006) is denied. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000). REVERSED AND REMANDED. (GENDEN, J. and ROTHENBERG, J. concur.)
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1The valid report requirement of section 627.736(7)(a), Florida Statutes does not require an insurer to order an independent medical examination (IME) before denying a claim for PIP benefits. Central Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Fire & Cas. Ins. Co., 34 Fla. L. Weekly D2396 (Fla. 4th DCA 2009).
2The Third District Court of Appeal in United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) held that under section 627.736(7)(a), a PIP insurer is required to obtain a physician’s report as a condition precedent to withdrawing or denying further medical payments. Id. at 320. The Third District Court of Appeal in United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213, 1215 (Fla. 3d DCA 2008) held that under section 627.736(7)(a), Florida Statutes, a valid medical report may be based upon the physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.
3Where a PIP claim is denied, an affidavit and medical report can be considered even though it was not prepared within 30 days from receipt of the claim as an insurer does not forfeit its ability to contest payment by failing to obtain reasonable proof within 30 days. United Auto. Ins. Co. v. Stand-up MRI of Miami, P.A., a/a/o Ibania Marcos, 15 Fla. L. Weekly Supp. 319a (Fla. 11th Jud. Cir. Ct. 2008).
