18 Fla. L. Weekly Supp. 499a
Online Reference: FLWSUPP 1806PART
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to find that peer review affidavit and report were legally and factually insufficient to raise factual issue precluding summary judgment where report incorporated in affidavit was not conclusory and was based on review of independent medical examination as well as records provided by insured and medical provider
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. PARTNERS IN HEALTH CHIROPRACTIC CENTER, a/a/o/ CECELIE YANIQUE GERLIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-187 AP & 06-324 AP. L.C. No. 03-5190 SP 25. March 10, 2011. An appeal from the County Court for Miami-Dade County, Florida, Teretha Lundy Thomas, Judge. Counsel: Michael J. Neimand, for Appellant. Marlene S. Reiss, for Appellee.
(Before LEDERMAN, LEBAN, and BUTCHKO, JJ.)
(BUTCHKO, Judge.) This case first appeared before this Appellate Court in the context of an appeal from the lower court’s entry of summary judgment in favor of Appellee, Partners in Health Chiropractic Center (“PHCC”), assignee medical provider for Cecelie Gerlin. Ms. Gerlin, a United Auto insured, was injured in a car accident and sought treatment from PHCC between June and November, 2003. PHCC submitted bills to United Auto totaling $3,385. United Auto denied payment.
In July 2005, PHCC filed a complaint against United Auto alleging non-payment of overdue benefits under the subject policy. In March 2006, PHCC filed a motion for summary judgment on the grounds that Ms. Gerlin’s chiropractic treatment was reasonable, related and necessary. In response, United Auto filed a peer review affidavit executed by a chiropractor, Marvin Merritt, who had conducted the review some four months earlier in November 2005. Dr. Merritt’s report indicated that Ms. Gerlin’s treatment was not reasonable, related or necessary. PHCC argued that United Auto was precluded from using Dr. Merritt’s report to support its denial of benefits because it was obtained after the denial itself. PHCC also objected to Dr. Merritt’s affidavit as failing to meet the standard of “competent evidence” within the meaning of Fla. R. Civ. P. 1.510(e). Lastly, PHCC argued that Dr. Merritt’s affidavit was invalid because it was not based on personal knowledge, made reference to unattached, extrinsic documents, contained inadmissible hearsay, and provided no competent basis for his opinions. The lower court agreed with PHCC on all issues, struck Dr. Merritt’s peer review, and granted summary judgment in favor of PHCC finding that in order for the peer review to support a denial of benefits, United Auto was required to obtain the review prior to the denial. United Auto timely appealed.
This Court reversed and held, consistent with its then-recent decision in United Automobile Ins. Co. v. Tate, 14 Fla. L. Weekly Supp 628a (11th Judicial Circuit Court, May 9, 2007), that an insurer is not barred from contesting reasonableness, relatedness or necessity simply because its peer review was obtained after benefits were denied and overdue. The Court then turned to the issue of the sufficiency of the peer review. Despite reviewing both the record and the trial court’s summary judgment order, this Court was unable to determine whether the lower court analyzed Dr. Merritt’s peer review affidavit for legal sufficiency. As such, the case was remanded for an analysis of whether Dr. Merritt’s peer review was factually and legally insufficient so as to render summary judgment appropriate.1 See, United Automobile Insurance Co. vs. Partners in Health Chiropractic Center, a/a/o/ Cecelie Yanique Gerlin, 14 Fla. L. Weekly Supp. 939a (Fla. 11th Cir. App. July 12, 2007), opinion on Motion for Clarification, 15 Fla. L. Weekly Supp. 123a (Fla. 11th Cir. App. December 18, 2007).
The lower court held a hearing on remand and determined that the peer review affidavit was legally and factually insufficient, and that the prior summary judgment was appropriate. United Auto filed the instant appeal.2
The standard of review for summary judgment is de novo and requires this court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
Upon a review of the transcript of the trial court’s hearing on remand, as well as the peer review report and affidavit of Dr. Merritt, this Court holds that, contrary to the trial court’s November 16, 2009 order, the peer review affidavit and report are legally and factually sufficient so as to raise a question of fact precluding summary judgment. The peer review report is incorporated by reference into Dr. Merritt’s affidavit, and is neither conclusory, nor based on insufficient information. The affidavit is based on Dr. Merritt’s review of the IME as well as other material provided to him by the insured or medical provider. As a result, genuine issues of material fact exist to overcome PHCC’s motion for summary judgment. Accordingly, we reverse the order herein appealed granting final summary judgment for Appellee PHCC as well as any order for prevailing party attorney’s fees, and remand this cause to the lower tribunal for proceedings consistent with this opinion.
In view of the protracted nature of this case, which commenced with an accident in 2005, and its history of comprehensive briefing, argument, issuance of opinions, rehearing and clarification motions, responses thereto, remand, hearing on remand, rebriefing, and issuance of this opinion some 5 or 6 years later, this Court directs that “the filing of rehearing is dispensed with.” Dor Rich, Inc. v. City of Miami Beach, 291 So. 2d 586, 586 (Fla. 1974) (“The judicial process having run its course . . ., further interference comes close to trifling with the judicial process. There has to be a time when litigation ends, and in this cause, it is over.”); and see, Edelstein v. Alexander, 746 So. 2d 565, 566 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2798d] (dispensing with rehearing); Palacio v. Palacio, 550 So. 2d 1135 (Fla. 3d DCA 1989) (same).
REVERSED and REMANDED for proceedings consistent with this opinion. (LEDERMAN and LEBAN, JJ., concur.)
__________________
1As we initially held: “If Dr. Merritt’s affidavit fails to meet legal standards, then summary judgment in favor of PHCC is appropriate. If the affidavit is legally sufficient, however, then summary judgment is improper.”
2This Court dispenses with oral argument pursuant to Rule 9.320, Fla. R. App. P.
