17 Fla. L. Weekly Supp. 40a
Online Reference: FLWSUPP 1701LIBE
Insurance — Personal injury protection — Summary judgment — Independent medical examination report that is not sworn or certified cannot be considered by court in opposition to medical provider’s motion for summary judgment — Insured’s attachment of IME report to her affidavit in support of summary judgment did not waive requirement that report be sworn or certified — Withdrawal of benefits — Valid report — Where IME opinion obtained prior to withdrawal of benefits states that additional/future chiropractic care would not be reasonable, related or necessary but does not address massage therapy that insured was receiving, denial of PIP benefits for massage therapy provided after IME cut-off date was breach of policy
VILLAGE CHIROPRACTIC AND HEALING ARTS CENTER P.A., as assignee of Holly Libes, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008SC016833XXXXMB RE. October 16, 2009. Nancy Perez, Judge. Counsel: Shannon M. Mahoney, West Palm Beach. Sheryl Blackmon Mandoeng, Law Offices of Maria C. Dantes Sanchez, Boca Raton.
REVERSED. FLWSUPP 1806LIBE
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY FINAL JUDGMENT AS TO BREACHOF CONTRACT (COUNT I)
THIS CAUSE came before this Court on “Plaintiff’s Motion for Summary Final Judgment as to Breach of Contract (Count I).” This Court has reviewed the motion and the court file, has heard argument of counsel, and is otherwise hilly advised in the premises.
Findings of Fact
On June 17, 2008, Holly Libes (“Ms. Libes”) was involved in an automobile accident. As a result of the accident, Ms. Libes sustained injuries to her lower back. At the time of the accident, she was insured under a policy of insurance issued by Liberty Mutual Insurance Company (“LIBERTY MUTUAL”). The policy entitled her to $10,000 in personal injury protection (“PIP”) benefits for the payment of reasonable expenses for medically necessary medical and rehabilitative services.
On July 28, 2008, Ms. Libes began treatment for her injuries at VILLAGE CHIROPRACTIC AND HEALING ARTS CENTER, P.A. (“VILLAGE CHIROPRACTIC”). VILLAGE CHIROPRACTIC provides chiropractic treatment as well as massage therapy under a massage establishment license. It is owned and operated by Steven Horowitz, D.C. (“Dr. Horowitz”).
Ms. Libes received services consisting of massage therapy, manual therapy and therapeutic exercises. VILLAGE CHIROPRACTIC submitted bills to LIBERTY MUTUAL and received payment from LIBERTY MUTUAL for treatment rendered to Ms. Libes from July 28, 2008 to October 15, 2008.
On October 4, 2008, at the request of LIBERTY MUTUAL, Ms. Libes attended a chiropractic Independent Medical Examination (“IME”) with David Dresner, D.C. (“Dr. Dresner”). Based on the results of the IME, LIBERTY MUTUAL cut off Ms. Libes’ chiropractic benefits effective October 20, 2008. After October 20, 2008, Ms. Libes received no chiropractic care but did continue to seek and receive massage therapy from October 22, 2008 to March 4, 2009. The massage therapy was rendered by licensed massage therapists Jay Scampole and Lucy Hauser. VILLAGE CHIROPRACTIC continued to timely bill LIBERTY MUTUAL for the massage therapy. LIBERTY MUTUAL denied payment of the massage therapy bills from October 22, 2008 to March 4, 2009 on the basis that “all chiropractic benefits are terminated on and after 10/20/08” based on the IME cut-off.
Ms. Libes executed an assignment of benefits in favor of VILLAGE CHIROPRACTIC that transferred standing to sue LIBERTY MUTUAL. VILLAGE CHIROPRACTIC filed the instant two-count Complaint against LIBERTY MUTUAL arising out of LIBERTY MUTUAL’S termination of PIP benefits. Count I states a cause of action for Breach of Contract, and Count II states a cause of action for Declaratory Relief. VILLAGE CHIROPRACTIC seeks payment of PIP benefits for massage therapy rendered to Ms. Libes from October 22, 2008 to March 4, 2009. VILLAGE CHIROPRACTIC further seeks interest on the benefits and attorney’s fees and costs.
In Count I, VILLAGE CHIROPRACTIC asserts that LIBERTY MUTUAL breached its duty to its insured, Holly Libes, by withdrawing/failing to pay personal injury protection benefits for massage therapy. In defense, LIBERTY MUTUAL asserted that it properly denied payment based on an independent medical examiner’s opinion that no additional “chiropractic care” was reasonable, related or necessary. In reply, VILLAGE CHIROPRACTIC entered a denial to the defense.
On April 8, 2009, VILLAGE CHIROPRACTIC served its Motion for Summary Final Judgment as to Breach of Contract (Count I) asserting that LIBERTY MUTUAL breached its insurance contract, to wit: before withdrawing PIP benefits for massage therapy, LIBERTY MUTUAL failed to obtain an opinion stating that continued massage therapy was not reasonable, related, or necessary. VILLAGE CHIROPRACTIC argued that the opinion that LIBERTY MUTUAL relied upon to cut benefits only addressed additional chiropractic care — the opinion did not specifically address the massage therapy at issue. Therefore, VILLAGE CHIROPRACTIC argued that there was no genuine issue of fact — contrary to Florida law, LIBERTY MUTUAL withdrew and denied PIP benefits without a valid opinion that the treatment at issue was not reasonable, related, or necessary.
In support of its Motion, VILLAGE CHIROPRACTIC filed the affidavits of Steven Horowitz, D.C. and Ms. Libes. Dr. Horowitz attested that the massage therapy that was rendered to Ms. Libes from October 22, 2008 to March 4, 2009 was reasonable, related and necessary to the automobile accident of June 17, 2008. He also attested that the billing for October 22, 2008 to March 4, 2009 totaled $1,324.33 and the bills were timely submitted to LIBERTY MUTUAL for payment, but denied.
Ms. Libes attested that she received massage therapy from VILLAGE CHIROPRACTIC from October 22, 2008 to March 4, 2009. She attested that she received an October 10, 2008 letter from LIBERTY MUTUAL advising her that her chiropractic benefits were being terminated effective October 20, 2008. She attested that the letter from LIBERTY MUTUAL attached a purported cut-off opinion from Dr. Dresner, dated October 4, 2008. She further attested that she disagreed with the IME cut-off and at no time did she consent to her benefits being cut off. But, she attested that the massage therapy helped her lower back and, since the cut-off opinion did not address massage therapy or state that continued massage therapy was not reasonable, related or necessary, she continued to seek and receive massage therapy from October 22, 2008 to March 4, 2009.
In opposition to VILLAGE CHIROPRACTIC’S Motion, LIBERTY MUTUAL filed an affidavit of the IME chiropractor, Dr. Dresner. In his affidavit executed on May 18, 2009, Dr. Dresner attests that, at the time that he examined Ms. Libes on October 4, 2008, he was aware that she was receiving massage therapy. He also attested that the phrase “chiropractic care” encompasses massage therapy. And, he opined that, as of October 4, 2008, “Ms. Libes did not require any reasonable, necessary or related massage therapy.” [sic]
VILLAGE CHIROPRACTIC argued that the May 18, 2009 affidavit of Dr. Dresner did not comply with §627.736(7)(a), Fla.Stat., which provides that an insurer may not withdraw benefits without first obtaining a valid report stating that the treatment was not reasonable, related or necessary. VILLAGE CHIROPRACTIC asserted that, before cutting off Ms. Libes’ benefits, LIBERTY MUTUAL failed to obtain a valid report stating that massage therapy was not reasonable, necessary or related.
LIBERTY MUTUAL did not file Dr. Dresner’s sworn or certified IME report of October 4, 2008. But, LIBERTY MUTUAL argued that Dr. Dresner’s October 4, 2008 report should be admissible as evidence in opposition to summary judgment because it was attached to the LIBERTY MUTUAL letter, which in turn was attached as an exhibit to the affidavit of Ms. Libes.
VILLAGE CHIROPRACTIC objected to the admissibility of Dr. Dresner’s October 4, 2008 report as hearsay. VILLAGE CHIROPRACTIC argued that Ms. Libes’ mere mention of her receipt of the opinion and attachment of the opinion as an Exhibit to her affidavit did not meet the “sworn to” or “certified” requirements for summary judgment evidence under Rule 1.510(e) of the Rules of Civil Procedure.
Conclusions of Law
A movant for summary judgment has the initial burden of demonstrating the nonexistence of a genuine issue of material fact. Ramos v. Wright Superior, Inc., 610 So.2d 46 (Fla. 3rd DCA 1992). In determining whether there are any genuine issues of material fact, all inferences are viewed in favor of the non-moving party and the moving party must conclusively show that there are no genuine issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Once the moving party tenders competent evidence to support its motion for summary judgment, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). It is not enough for the opposing party to merely assert that an issue does exist. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1967).
Pursuant to §627.736, all motor vehicle insurers must provide PIP benefits for the payment of reasonable bills for necessary medical treatment. In considering the affidavits of Dr. Horowitz and Ms. Libes, this Court finds that VILLAGE CHIROPRACTIC has met its burden in establishing that the treatment rendered to Ms. Libes from October 22, 2008 to March 4, 2009 was reasonable, necessary and related to her automobile accident of June 17, 2008.
Having found that VILLAGE CHIROPRACTIC has met its burden, the Court now considers any counter-evidence sufficient to reveal a genuine issue of material fact. But, before the Court can address LIBERTY MUTUAL’S opposition to the motion for summary judgment, the Court must first address VILLAGE CHIROPRACTIC’S objection to the admissibility of Dr. Dresner’s October 4, 2008 IME report. VILLAGE CHIROPRACTIC argues that the October 4, 2008 report is inadmissible because it fails to meet the “sworn” or “certified” requirements under Rule 1.510(e), Fla. R.Civ. P. In response, LIBERTY MUTUAL asserts that VILLAGE CHIROPRACTIC waived the requirements under Rule 1.510(e) because it relied on the affidavit of Ms. Libes, which included the report as an attachment to the LIBERTY MUTUAL IME cut-off letter.
In passing upon a motion for summary judgment, the trial court is bound by the procedural strictures inherent in Fla. R.Civ. P. 1.510, in this instance, rule 1.510(e), which mandates that copies of all papers or parts thereof used to support or oppose a motion for summary judgment must be sworn to or certified. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997). Rule 1.510(e) provides that:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in and affidavit shall be attached thereto or served therewith.
Here, Dr. Dresner’s October 4, 2008 IME report was attached to Ms. Libes’ affidavit — only as an attachment to a letter from LIBERTY MUTUAL. Pertaining to the letter and the report, Ms. Libes attested in her affidavit, “Attached hereto as Exhibit A is a copy of the letter, dated October 10, 2008, that I received from Liberty Mutual Insurance Company. The letter attached a copy of the Independent Medical Examiner’s purported opinion.”
Dr. Dresner’s report is not sworn to or certified, nor does Ms. Libes attest that she has any personal knowledge of the report that would make her competent to testify to the matters therein. Merely attaching documents, which are not sworn to or certified, does not, without more, satisfy procedural strictures inherent in Fla. R.Civ. P. 1.510(e) of the rule governing affidavits and certified attachments. “Moreover, rule 1.510(e), by its very language excludes from consideration on a motion for summary judgment, any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit.” Bifulco, 693 So. 2d at 709. Accordingly, the Court sustains the objection of VILLAGE CHIROPRACTIC and finds that the October 4, 2008 report of Dr. Dresner does not satisfy the requirements of Fla. R.Civ. P. 1.510(e) and therefore cannot be considered by this Court or relied upon by LIBERTY MUTUAL in opposition to summary judgment.
Having sustained the objection to Dr. Dresner’s October 4, 2008 report, the court now considers Dr. Dresner’s affidavit, dated May 18, 2009, wherein he opines that, as of October 4, 2008, no additional massage therapy was reasonable, necessary or related to Ms. Libes’ June 17, 2008 accident.
Florida Statute §627.736(7)(a) sets forth the requirements an insurer must meet in order to withdraw PIP benefits based upon an IME. It provides:
Mental and physical examination of injured person; reports. —
(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians.
***
An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. (emphasis added).
***
According to the plain language of §627.736(7)(a), the only way that LIBERTY MUTUAL could withdraw payment for massage therapy would have been to first obtain an opinion stating that massage therapy was not reasonable, related or necessary. Here, no such opinion exists. Instead, LIBERTY MUTUAL relies on an opinion rendered by Dr. Dresner on May 18, 2009 — well after LIBERTY MUTUAL withdrew and denied payment, well after this lawsuit was filed and, even after the massage treatment at issue was concluded. In contravention to §627.736(7)(a), LIBERTY MUTUAL failed to obtain an opinion stating that no additional massage therapy was reasonable, necessary or related prior to withdrawing Ms. Libes’ massage therapy benefits.
This Court has already concluded that Dr. Dresner’s October 4, 2008 report is not admissible for summary judgment, however, this Court also notes a significant difference between Dr. Dresner’s October 4, 2008 report and his May 18, 2009 affidavit: In the October 4, 2008 report, Dr. Dresner opines only that “additional/future chiropractic care would no longer be considered reasonable, necessary and related or related” to the accident. He makes no mention of whether massage therapy — the therapy that Ms. Libes was actually receiving — was reasonable, necessary or related. In contrast, in his May 18, 2009 affidavit, Dr. Dresner states that “as of 10/04/08, Ms. Libes did not require any reasonable, necessary or related massage therapy with respect to her 06/17/08 accident.” [sic].
Nevertheless, absent an opinion that massage therapy was not reasonable, related or necessary prior to withdrawing payments, LIBERTY MUTUAL’S denial of PIP benefits for massage therapy was unlawful and a breach of Ms. Libes’ insurance contract. Accordingly, VILLAGE CHIROPRACTIC is entitled to Summary Final Judgment as a matter of law as to its breach of contract claim (Count I).
Based on the foregoing, it is ORDERED AND ADJUDGED that “Plaintiff’s Motion for Summary Final Judgment as to Breach of Contract (Count I)” is GRANTED. Plaintiff, VILLAGE CHIROPRACTIC, as the assignee of Holly Libes, shall recover judgment from Defendant the sum of $1,324.33 in principal, plus late interest at the applicable interest rates on the principal amount. The judgment shall bear interest at 8%, for which let execution issue.
The Court also finds that Plaintiff is entitled to attorney’s fees and costs for prosecution of this action pursuant to §§57.104 and 627.428, and Plaintiff shall recover the reasonable amount of same from Defendant. The Court reserves jurisdiction to fix the reasonable amount of Plaintiff’s attorney’s fees and costs incurred for prosecution of this action.
