18 Fla. L. Weekly Supp. 1041a
Online Reference: FLWSUPP 1810ARMA
Insurance — Personal injury protection — Summary judgment is granted in favor of medical provider on issue of reasonableness, relatedness and necessity of treatment where insurer’s affidavit in opposition to summary judgment, which was not prepared by medical doctor and is based on hearsay documents, is legally insufficient to rebut provider’s affidavit on issue of relatedness of accident — Fraud — Summary judgment is granted in favor of provider on affirmative defense of fraud where insurer has no proof that accident did not occur or was staged, insurer waived right to raise affirmative defense of fraud by failing to notify provider or insured that it was denying benefits based on fraud, and economic loss rule bars fraud defense against provider for billing for claims arising from staged accidents — Notice of loss — Summary judgment is granted in favor of provider on affirmative defense that insurer was not furnished with notice of loss due to absence of physician’s license number on claim form where claim was completely filled out except for license number, attached reports indicate that provider is licensed physician, there is no indication of fraud or that insurer considered possibility that provider was not properly licensed physician, and insurer waived technical defect by processing claim without alerting provider to defect — No merit to affirmative defense alleging constructive fraud through billing for treatment not rendered where provider has established that all services and charges were lawfully rendered, and insurer has no proof of fraud
EDUARDO RAMIREZ, D.C., P.A., a/a/o Mijael De Armas, Plaintiff, vs. MAPFRE INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 09 12369 CC 25 (02). June 24, 2011. Lawrence D. King, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, EDUARDO RAMIREZ, D.C., P.A., a/a/o Mijael De Armas, Motion for Summary Judgment, after due notice to all parties, the Court having heard argument of counsel in EDUARDO RAMIREZ, D.C., P.A., a/a/o Yuliet Reyes v. MAPFRE INSURANCE COMPANY OF FLORIDA, Case No.: 09 12368 CC 25 (02), and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. GRANTED in regard to reasonable, related and medically necessary. The Plaintiff has established reasonable, related and medically necessary through the affidavit of Dr. Eduardo Ramirez. The Defendant did not file a doctor’s affidavit in opposition to the motion and supporting affidavit. The Court has reviewed the affidavit and report of Harold Franck, P.E. filed in opposition, and found that it is legally insufficient to rebut the issue of related. First, Mr. Franck is not a medical doctor and is not permitted to opine as to whether the subject motor vehicle accident caused the injuries and subsequent treatment rendered by the Plaintiff to the claimant. Second, Mr. Franck, who was incidentally retained by the other vehicle’s auto insurance carrier to investigate the accident, never reviewed any statement given by the claimant, Ms. Yuliet Reyes, or her passenger, Mijael De Armas, in regard to the subject motor vehicle accident. All of the documents which Mr. Franck reviewed which are outlined in his affidavit and report are hearsay documents. He never physically inspected the vehicles or interviewed the persons involved in the subject motor vehicle accident. Because all of the reports, etc. attached to his report are considered by this Court as hearsay, the Court will not consider them in opposition to the motion for summary judgment. The Court may only consider competent, admissible evidence in support or in opposition to a motion for summary judgment. Unauthenticated hearsay evidence is inadmissible. Fla. Stat. § 90.801; Fla. Stat. § 90.802; Fla.R.Civ.P. 1.510. Bifulco v. State Farm Mutual Automobile Insur. Co., 693 So.2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a] (Documents submitted by automobile insurer to establish its filing of revised decreased premium rates for policies with limited coverage were inadmissible under hearsay exceptions for business records and public records, since they were not authenticated by custodian.). Documents cited in affidavits must be properly authenticated to be considered at a summary judgment. According to Rule 1.510(e), “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” See Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2nd DCA 1992) (Because there were no certified copies of the public records attached to affidavit, the affiant is unable to authenticate the documents referred to in his affidavit, and therefore, the affidavit was based upon hearsay and was incompetent to support summary judgment). These documents were never properly authenticated or sworn to by affidavit.
2. In regard to the Defendant’s First Affirmative Defenses, the Defendant has no proof that the subject accident involving the claimant did not occur at all or was staged, and therefore, the treatment rendered by the Plaintiff to the claimant was fraudulent. Fraud must be plead with specificity, and all essential elements must be stated, whether on complaint or defense. Peninsular Florida Dist. Council of Assemblies of God v. Pan American Inv. & Dev. Corp., 450 So.2d 1231 (Fla. 4th DCA 1984). Elements not pled may not be inferred from context. Myers v. Myers, 652 SO.2d 1214 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D806a]. The Defendant has failed to properly plead or prove fraud in its First Affirmative Defense, and therefore, this Court grants the Plaintiff’s motion on this defense. Further, the Defendant waived its right to deny the claim based on fraud as an affirmative defense as it failed to notify the provider, and/or insured of its decision to deny benefits based upon the alleged fraud. Tiedtke v. Fidelity & Casualty Co. of New York, 222 So. 2d 206 (Fla. 1969); Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176, 178 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1165a]. Waiver of fraud can occur where a party should have discovered the fraud through ordinary diligence. See Hurner v. Mut. Bankers Corp., 140 Fla. 435, 191 So. 831, 833 (Fla. 1939). Finally, under Florida law, the economic loss rule is a bar to the insurer’s defense of common law fraud against the Plaintiff medical care provider which includes billing for claims arising from staged automobile accidents. Nationwide Mut. Co. v. Ft. Myers Total Rehab Center, Inc., 657 F. Supp 2d 1279 (USDC M.D. Fla. 2009). The insurer’s obligation to the Plaintiff medical provider arises solely on their insured’s assignment of insurance benefits to the Plaintiff medical care provider. Id.
3. As its Second Affirmative Defense, the Defendant alleges that Plaintiff submitted medical bills without including the license number as required in Box 31 of the HCFA forms. The Defendant alleges that submission of properly completed HCFA 1500 forms is a condition precedent to making a claim for PIP benefits, and as such Defendant has not been furnished with proper notice of a covered loss. First, The license number of the provider does not provide any information that the carrier needs to evaluate, investigate or pay a claim. See World Health Chiropractic & Rehabilitation, Inc. v. Nationwide Property and Casualty Insurance Co., 12 Fla. L. Weekly Supp. 594b (Fla. 18th Jud. Cir. 2005). The bills at issue contain the typed name of Dr. Eduardo Ramirez, D.C. as well as his signature. Further, his license number appears in Box 17. Therefore, the person providing the services is identified. Fla. Stat. § 627.736(4)(b) uses the term “properly completed,” which is a term of art defined by the statute. In the case sub judice, a close inquiry into the undisputed facts shows that the omission of the doctor’s license number was patently immaterial. United Automobile Insurance Company v. John Ortiz, D.C., 16 Fla. L. Weekly Supp. 308h (Fla. 1lth Jud. Cir. App. 2009), cert. denied 3/13/09 (Fla. 3rd DCA). The form was filled out as to all other provisions, the attached reports are complete and indicative that Dr. Ramirez is a properly licensed physician, and there is no evidence whatsoever of any fraud. Moreover, there is no indication that the Defendant even considered the possibility that Dr. Ramirez was not a properly licensed physician, even when it used the failure to provide the license number as the basis for its motion for summary judgment. Id.
4. Dr. Ramirez’ affidavit show that he is, in fact, a properly licensed physician. Further, Dr. Ramirez’ undisputed affidavit also establishes that the license number is easily obtained by visiting the Florida Department of Health Website. As such, the legislative intent of § 627.736(5)(d) has been met. Id. The record clearly shows that the defendant had actual notice of the nature and amount of the claim as required by § 627.736 (4)(b). Further, the insurance company never even attempted to ascertain whether Dr. Ramirez was licensed at the time of rendering treatment and has no reason to dispute that the license number contained in box 17, CH7714, is in fact Dr. Ramirez’ license number.
5. Given the information that the Defendant did receive and its conduct after receipt of the claim, the Defendant’s actions throughout the claim process including setting an IME and taking an EUO constituted the relinquishment of the right to dispute the claim, for mere failure to include the physician’s license number on a form. See United Automobile Ins. Co. v. Mary Brown, 15 Fla. L. Weekly Supp. 893b (Fla. 17th Jud. Cir. 2008). The Defendant’s course of conduct constituted “waiver” of such a claim because the Defendant continued to proceed with examinations, such as requesting an IME and EUO which the claimant attended according to the adjuster, as though no prima facie defect in the claim existed, so to further insulate the Plaintiff from being alerted to any mere technical omission from the form. The Defendant’s own actions prevented the Plaintiff from rectifying the alleged claim form defect. Id.
6. As its Third Affirmative Defense, Defendant alleges that the claim submitted by the Plaintiff contained fraudulent representations submitted with the intent to defraud Defendant to its own detriment. Specifically, the Defendant received bills for treatment but said treatment were never rendered. Defendant is alleging constructive fraud pursuant to cited case law. This defense has no merit since the Plaintiff has established that all of the subject medical services and charges at issue were lawfully rendered to the claimant through the affidavit of Dr. Ramirez. Further, the Defendant does not have any proof of fraud. In fact when asked in deposition about this defense, the adjuster testified that “I don’t have all that information clear.” When asked if the Defendant had any facts to support this defense the response was “no.” Question: None? Answer: “No.” The Defendant failed to prove that the Plaintiff submitted fraudulent representations with the intent to defraud the Defendant, and therefore, the Court grants the Plaintiff’s motion in regard to this affirmative defense.
7. Because the Court has ruled on all issues, the Plaintiff is requested to submit a Final Judgment in favor of the Plaintiff in accordance with this Court’s rulings.
