17 Fla. L. Weekly Supp. 417a

Online Reference: FLWSUPP 1706PINO

Insurance — Personal injury protection — Opposing affidavit — Peer review — Abuse of discretion to refuse to consider peer review report submitted in opposition to motion for summary judgment on basis that report that found some treatment prior to independent medical examination was not reasonable, related or necessary conflicted with IME report that found that further treatment would not be reasonable, related or necessary where IME report did not discuss prior treatments — Error to deny insurer’s request to correct deficiency in peer review affidavit which failed to list databases relied upon in reaching conclusions regarding challenged treatments — Withdrawal of benefits — Notice — Abuse of discretion to find that cutoff of benefits following IME was effective on date insurer sent notice of cutoff rather than date on which IME physician determined further treatment would not be reasonable, related or necessary

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MARUCCI WELLNESS CENTER D/B/A SOUTH FLORIDA INSTITUTE OF PAIN MANAGEMENT a/a/o Lorena Pino, Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-614 AP. L.C. Case No. 2007 012835 CC 25. March 22, 2010. An Appeal from the County Court in and for Miami-Dade County. Andrew S. Hague, Judge. Counsel: Michael J. Neimand, Office of the General Counsel for United Automobile Insurance Company, for Appellant. Jose R. Iglesias, Iglesias & Associates, for Appellee.

(Before JACQUELINE H. SCOLA, DIANE WARD, DARYL E. TRAWICK, JJ.)

(PER CURIAM.) Defendant/Appellant, United Auto Insurance Company, (UAIC), seeks reversal of summary judgment granted in favor of Plaintiff/Appellee, Marucci Wellness Center, (MWC). UAIC argues that the trial court erred in refusing to consider a peer review report based upon the finding that the report was conclusory. It is also asserted by UAIC that the trial court erred in granting summary judgment in favor of MWC on the issue of whether the services rendered through the date of UAIC’s suspension letter were reasonable, related and necessary. We agree and therefore REVERSE the entry of final summary judgment in favor of the Plaintiff/Appellees and REMAND this cause for entry consistent with this opinion. This court adopts the following findings of fact and makes the following conclusions of law:

Lorena Pino, the insured, was involved in a motor vehicle accident on April 25, 2005 during which she sustained injuries to her right leg and knee. Ms. Pino sought treatment with Dr. Jason T. Marucci of Marucci Wellness Center d/b/a South Florida Institute of Pain Management from May25, 2005 through September 9, 2005.

On June 13, 2005, Ms. Pino underwent an independent medical examination (IME) with Dr. Dennis Kogut, D.C., who found that as of June 13, 2005 no further treatment was reasonable, related or necessary. Thereafter, on July 6, 2006, a peer review was conducted by Dr. Marvin Merrit who reviewed the patient’s treatment records.¹ It was Dr. Merrit’s opinion that certain charges submitted by MWC were unreasonably charged. Further, Dr. Merrit, concurring with Dr. Kogut, found that no treatment after June 13, 2005 was reasonable, related or necessary. UAIC then sent a suspension letter dated July 25, 2005 to the insured informing her that benefits were suspended as of June 13, 2005 pursuant to Dr. Merrit’s peer-review report. When demand for payment went unheeded, MWC filed a complaint against UAIC for breach of contract for PIP benefits.

UAIC filed its affirmative defense based on Dr. Kogut and Dr. Merrit’s assertions that treatment after June 13, 2005 was not related and necessary and that certain treatments prior to June 13, 2005 were not reasonably charged. MWC filed a motion for summary judgment asserting that all treatment was reasonable, related, and necessary attaching the affidavit of Dr. Marucci in support thereof. UAIC filed both Dr. Kogut’s IME report and Dr. Merrit’s peer review report in opposition to MWC’s motion.

At the hearing on MWC’s motion for summary judgment the trial court refused to consider Dr. Merrit’s affidavit finding that the peer review conflicted with Dr. Kogut’s IME report and was conclusory as to the alleged unreasonable charges. Further, the trial court granted summary judgment in favor of MWC finding that treatment was reasonable, related, and necessary through July 25, 2007, the date of the insured’s suspension of benefits letter. This appeal followed.

At issue on appeal is: (I) whether the trial court abused its discretion in refusing to consider Dr. Merritts’s peer review report based on the finding that the same conflicted with Dr. Kogut’s IME report and was conclusory in that it did not state which databases he relied on with regard to the issue of whether treatment was reasonable, related, and necessary; (II) whether the trial court abused its discretion in granting summary judgment in favor of MWC as to whether Dr. Marucci’s treatment was reasonable, related, and necessary through July 25, 2005, the date of UAIC’s suspension letter; (III) whether Dr. Marucci, is entitled to an expert witness fee; and (IV) whether this Court may deny MWC’s motion for attorney’s fees if it is found that the trial court was in error.

I.

“[A] party, when met by Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy².” Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954).

During the hearing on plaintiffs motion for summary judgment MWC argued, and the trial court agreed, that Dr. Merrit’s peer review report conflicted with the findings asserted in Dr. Kogut’s IME report. Specifically, MWC asserted that “although Dr. Merritt [sic] agrees with Dr. Kogut’s IME findings that further treatment after the IME would not be reasonable related or medically necessary, his report concludes that certain treatments and charges were not reasonable, related and necessary prior to the IME report. Dr. Kogut does not opine that any of the treatment prior to the IME was not reasonable, related and necessary. His opinion then conflicts with Dr. Kogut’s report. . . .” We disagree and decline to interpret Dr. Merrit’s peer report as baldly repudiating Dr. Kogut’s IME, as contemplated in Ellison, for the purposes of affirming the trial court’s grant of summary judgment in favor of MWC.

The IME prepared by Dr. Kogut does not discuss whether any treatments or charges prior to June 13, 2005 were reasonable, related, and necessary; it simply states that all treatment after that date was not. Dr. Merrit’s contention that certain treatment and/or charges prior to June 13, 2005 were not reasonable, related, and necessary arguably supplements, but does not expressly contradict Dr. Kogut’s IME. See, Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA. 1994).

Appellees’ reliance on Martinez is unavailing as in that case, the insurer sought to alter the position taken in the IME by submitting a peer-review which denied payment for any benefits prior to the IME cutoff date where the IME already acknowledged the insured’s complaints and treatment were causally related to the accident. Professional Medical Group, Ind. a/a/o Alberto Martinez v. United Automobile Ins. Co., Caseno. 04-8616 SP 25, Appellate Case nos. 06-021 AP & 06-029 AP (March 23, 2005). Such blatant contradiction is not apparent in the instant matter.

Further, here, the trial court found that Dr. Merrit’s failure to state which databases he relied upon in coming to his conclusions was fatal to his affidavit. A request by UAIC to file a supplemental affidavit providing this information was denied. However, this ruling contradicts prevailing case law.

The court in Stephens v. Dichtenmueller overruled a similar refusal by the district court to permit amendment or supplementation of an affidavit submitted by plaintiff in opposition to defendant’s motion for summary judgment. Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968). The court reasoned that:

It appears that the defects were largely technical and subject to correction. A liberal treatment of petitioners’ motion should have led to an order giving them the opportunity to supply the deficiencies. After all, had the same objection been raised by Dr. Graubard’s testimony at the trial, the plaintiffs could have rephrased the questions or otherwise remedied the alleged insufficiency. We think they should have the same opportunity in the summary judgment procedure. . . The deficiencies in the affidavit, pointed out by the District Court, of failure to show affirmatively that affiant was competent to express the opinion contained therein and the vagueness of the affidavit, were largely technical and may have been amenable to correction similarly as was the affidavit in Holl v. Tallcott. (emphasis added).

Stephens v. Dichtenmueller, 216 So. 2d at 450 (citing Holl v. Talcott, 191 So. 2d 40 (Fla. 1966)).

It is well settled that, “summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Cohen v. Cooper, 20 So.3d 453, 455 (Fla. 4th DCA 2009). The facts must be so crystallized that nothing remains but questions of law. The court must draw every possible inference in favor of the non-moving party. Id. Further, the burden of proving the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. See, Holl, 191 So. 2d at 43-44.

As it applies to the case at bar, summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit especially where the deficiency is correctible. See, McCoy v. Hoffmeister, 435 So. 2d 989 (Fla. 5th DCA 1983). We therefore find that the trial court improperly denied the Appellants request to correct any deficiency in Dr. Merrit’s affidavit, regarding the failure to list which databases he relied upon in coming to his conclusions regarding the challenged treatment and/or charges. In reaching this decision we are guided by the maxim that “[g]reat caution should be exercised in any summary judgment proceedings [sic] not to deny a litigant ample opportunity to demonstrate that he is entitled to benefit of a trial.” Stephens, 216 So. 2d at 450.

II.

The second issue on appeal is whether the trial court abused its discretion in granting summary judgment in favor of MWC as to whether treatment was reasonable, related, and necessary July 25, 2005, the date of UAIC’s suspension letter, rather than the June 13, 2005 cut-off date.

Here, Appellants notified the insured on July 25, 2005 that as of June 13, 2005 further benefits were suspended pursuant to the IME and peer-review reports prepared by Drs. Kogut and Merrit, respectively. Appellees argue that they were entitled to benefits until the date they received notice that benefits were suspended and that Appellants are estopped from denying coverage between those dates since they failed to provide notice as required by the PIP statutes. We find that Appellees’ argument is unavailing for the following reasons.

First, it has been held that “an insurance company is not required to provide notice to the insured that it will not pay for medical expenses after further treatment is found not to be [reasonable, related, and necessary].” United Autombile Insurance Company v. Professional Medical Group, Inc., a/a/o Mercedes Valientas, 16 Fla. L. Weekly Supp. 389a (Fla. 11th Cir. Ct. 2009). In a case factually similar to the case at bar, the appellate panel found that the trial court erred in entry of summary judgment in favor of the provider using the date of the suspension of benefits letter. Id. That court determined that nothing in §627.736(7)(a) requires an insurance company to provide notice to the insured that they are withdrawing benefits persuasive let alone provide for a specific time period in which they must do so. Id. This court finds this reasoning persuasive.

Second, Appellees very reliance on an estoppel argument necessitates reversal of the grant of summary judgment. This is so because in order to make a prima facie case for estoppel, a factual determination must be made as to whether Appellees detrimentally relied upon a representation made by Appellants. Thus, reliance on this argument means that the grant of summary judgment in this matter was improper. See, Cummins v. Allstate Indemnity Company, 732 So. 2d 380 (Fla. 4th DCA 1999) (finding that an estoppel can only be invoked against an insurer when its conduct has been such as to induce actions or forbearance in reliance upon it.) That court held, “whether detrimental reliance can be established. . . so as to invoke the theory of promissory estoppel involves a resolution of factual issues. Summary judgment may not be used as a substitute for trial. If the affidavits and other evidence raise any doubt as to any issue of material fact . . . summary judgment may not be entered.” Id. at 382-83. See also, United Automobile Insurance Company v. Marucci Wellness Centers, LLC., a/a/o Haraman Sila, 16 Fla. L. Weekly Supp. 503a (Fla. 11th Cir. Ct. 2009) (holding that as to the arguments raised regarding the affirmative defenses of waiver, laches and estoppel, normally such issues raise factual questions that preclude summary judgment.)

For the foregoing reasons, we find that the grant of summary judgment in Appellees favor was improper and therefore, reverse.

III.

Also on appeal is the issue of whether Dr. Marucci is entitled to expert witness fees as awarded by the trial court. We decline to reach this issue as it has been rendered moot since the trial court entered an agreed order granting Plaintiff’s Motion for Protective Order for Expert Witness Fees³. Dept. of Health and Rehabilitative Services v. G&J Investments Corp., 541 So. 2d 1197 (Fla. 3d DCA 1988) (holding that one cannot participate in an inducement of error and then urge error in same as a basis for recovery.)

IV.

Finally, on September 1, 2009, Appellees filed a motion for attorney’s fees pursuant to §627.428, Fla. Stat. should Appellees prevail on appeal.

It is well settled that an award of attorney’s fees and costs predicated on a reversed or vacated final judgment must also be reversed. Dooley & Mack Constructors, Inc. v. Buildtec Construction Group, Inc., 983 So. 2d 1243 (Fla. 3d DCA 2008). As a result of this court’s findings, Appellees are not entitled to attorney’s fees.

Accordingly, it is hereby ORDERED and ADJUDGED that the Motion for Summary Judgment in favor of Marucci Wellness Center is REVERSED and REMANDED for entry consistent with this opinion.

DONE and ORDERED.

__________________

¹For the purposes of the Peer Review, Dr. Merrit reviewed the following documents: Law Enforcement (short form) dated 4/26/2005; IME Report of Dr. Kallan dated 7/13/2005; IME report of Dr. Dennis Kogut dated 6/13/2005; Initial Examination report from Marucci Wellness Center dated 5/3/2005; Treatment notes from Marucci Wellness Center dated 5/3/2005 through 6/9/2005; HCFA 1500 forms submitted by provider for dates 5/3/2005-6/9/2005; Request for MRI from Open MRI of Miami-Dade dated 6/10/2005; Results of MRI resulting from said request; and HCFA form from Open MRI of Miami-Dade for service.

²In that case, appellant, a passenger in a jitney bus, who was injured in an accident when the bus collided with another vehicle, gave a deposition absolving the bus driver of negligence. When appellees filed a motion for summary judgment relying on the deposition, appellant proffered an affidavit which sought to repudiate a portion of her previous testimony by alleging that the bus driver did nothing to avoid the accident.

³Agreed Order Granting Plaintiff’s Motion for Protective Order on Expert Witness Fees for Dr. Marucci was filed on October 10, 2007 and entered by Judge Andrew S. Hague. (R. at 35)