18 Fla. L. Weekly Supp. 582a
Online Reference: FLWSUPP 1807SUAR
Insurance — Personal injury protection — Independent medical examination — Failure to attend — No error in granting summary judgment for insured on affirmative defense asserting unreasonable failure to attend IME where IME was scheduled with medical physician and insured was not treating with medical physician — Error to enter final summary judgment on issue of reasonableness, relatedness and necessity of treatment without considering opposing peer review report on grounds that report was obtained over three years after denial of claim
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. ADIS SUAREZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-425 AP & 10-208 AP (Consolidated). L.C. Case No. 05-13432 CC 23. April 12, 2011. An Appeal from the County Court for Miami-Dade County, Eric Hendon, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, for United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.
(Before FIRTEL, JIMENEZ, and HIRSCH, JJ.)
(FIRTEL, Judge.) This matter is an appeal from a final summary judgment dated July 23, 2009 in favor of Appellee Adis Suarez. On December 21, 2004, Ms. Suarez, sustained personal injuries in an automobile collision. She sought treatment from Dr. Iris Koch-De Jesus, D.C. of Health Choice Medical Group/Health Choice Wellness Center from December 30, 2004 until April 27, 2005. Appellant United Automobile Insurance Company (United) denied her claim for personal injury protection (PIP) benefits under her policy.
In 2005, Appellee sued for breach of contract for PIP benefits. United filed an answer and affirmative defenses. The first affirmative defense asserted that Ms. Suarez failed to attend the medical independent medical examination (IME) scheduled to be performed by Dr. David Goldberg, M.D. The second affirmative defense denied that Ms. Suarez’s treatment was reasonable, related and medically necessary (RRN) based on a peer review report by Dr. Don Morris, D.C. The trial court granted summary judgment for the Appellee on both Appellant’s affirmative defenses.
The standard of review for granting summary judgment is de novo. Collections, USA, Inc. v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1243a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. The issues presented by United on appeal are: 1) whether the trial court erred in granting summary judgment by finding that the Appellee did not unreasonably refuse to attend the medical IME of Dr. Goldberg and 2) whether the trial court erred in granting summary judgment, by finding that the opposing peer review report of Dr. Morris was untimely, because it was obtained three years plus after United denied the claim. Of the two issues presented on appeal, this Appellate Court reverses and remands as to the second.
As to the first issue, United argues on appeal that the trial court erred in granting final summary judgment on the medical IME affirmative defense by relying upon De Farrari v. Government Employees Insurance Company, 613 So. 2d 101 (Fla. 3d DCA 1993). United contends that Appellee unreasonably refused to attend the medical IME which was scheduled to be performed by a medical physician. Appellee argues, relying on United Auto. Ins. Co. v. Gaitan, 41 So. 3d 268 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1240d], that she did not unreasonably refuse to attend the scheduled medical IME, because she was not treating with a medical physician.
Appellee correctly points out that De Farrari involved an uninsured motorist claim that sought uninsured motorist benefits.1 On the other hand, in Gaitan, the court held that a genuine issue of material fact existed where the insured’s refusal to attend a scheduled chiropractic IME was reasonable, given that she had never treated with a chiropractor nor made a claim for chiropractic benefits, as a consequence summary judgment was precluded. Gaitan, 41 So. 3d at 270. Based on the record and Gaitan, this Appellate Court finds that the trial court did not err in granting final summary judgment as to United’s first affirmative defense.
As to the second issue, United avers on appeal that the trial court erred in entering a final summary judgment based on its second affirmative defense. The trial court improperly refused to consider the opposing peer review report of Dr. Morris, D.C. United argues that when denying benefits, it was not required to obtain a valid medical report under section 627.736(7)(a), relying on United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. Appellee concedes error and that the final summary judgment based on RRN below must be reversed based on Santa Fe and United Auto. Ins. Co. v. Perez, 21 So. 3d 886 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a].
The Third District Court of Appeal in Santa Fe receded from that portion of the opinion in United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a]2 which suggested that the valid report requirement in United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D14a]3 applies to both withdrawal and denial of PIP benefits. Santa Fe, 21 So. 3d at 67. A valid report is not required under section 627.736(7)(a) when an insurer seeks to deny payment or a reduction of a PIP claim,4 as opposed to withdrawing the payment of further benefits without the insured’s consent. Santa Fe, 21 So. 3d at 67.5 This is because section 627.736(4)(b) does not require an insurer to obtain a valid medical report from a physician before denying payment of a claim. Id. at 65.6
The trial court relied upon Perez v. United Auto. Ins. Co., 16 Fla. Weekly Supp. 296a (Fla. 11th Jud. Cir. Ct. Feb. 20, 2009) in making its determination. In Perez, the trial court affirmed the striking of a peer review report on the ground that it was untimely, where it was not obtained until three years after the PIP benefits were denied, and two years after litigation ensued. (R. 30).7 The Eleventh Circuit Perez Case was reversed, by the Third District Court of Appeal Perez Case — United Auto. Ins. Co. v. Perez, 21 So. 3d 866 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a] — which was based on Santa Fe. In Perez, the Third District held that the insurer’s peer review report on the issue of RRN was not untimely even though it was filed three years after the denial of PIP benefits, as section 627.736(7)(a) was inapplicable. Perez, 21 So. 3d at 887. Furthermore, proof in support of a denial of a claim could be provided at any time under section 627.736(4)(b). Id.
Based on this record and Santa Fe, this Appellate Court finds that the trial court erred in granting summary judgment, the opposing peer review report of Dr. Morris would have raised a material issue of fact as to whether the unpaid medical bills were RRN. Accordingly, this Appellate Court affirms in part and reverses in part the final summary judgment below, and remands to the trial court for further proceedings consistent with this opinion. Reversal of the underlying judgment requires a reversal of any award of attorney’s fees and costs. S & I Investment v. Payless Flea Market, Inc., 40 So. 3d 48, 49 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1451a]. Appellee’s motion for appellate attorney’s fees pursuant to section 627.428(1), Florida Statutes is denied because Appellee did not prevail. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000) [25 Fla. L. Weekly S1103a]. (JIMENEZ and HIRSCH, JJ., concurs.)
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1De Farrari affirmed a summary judgment for the insurer in holding that an unreasonable refusal existed to attend an IME by an insured, who expressly refused to attend the IME based on the examining physician’s specialty. De Farrari v. Government Employees Insurance Company, 613 So. 2d 101, 103 (Fla. 3d DCA 1993).
2The Third District Court of Appeal in Bermuda, 980 So. 2d at 1215, held under section 627.736(7)(a), that 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.
3In Viles, the Third District Court of Appeal held under section 627.736(7)(a), that a PIP insurer is required to obtain a physician’s report as a condition precedent to withdrawing or denying further medical payments. 726 So. 2d at 320.
4The Santa Fe Court cited to State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 18 So. 3d 1059 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D839a] which held that the valid medical report requirement of section 627.736(7)(a) was inapplicable as the insurer’s refusal to pay for certain tests was a denial, and not a withdrawal of payment. Id. at 66.
5When an insurer denies payment, the “first obtained” language of section 627.736(7)(a) is not controlling. United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 21 So. 3d 112, 114 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b].
6A denial case is governed by section 627.736(4)(b) which pertains to circumstances where the insured has either reduced, omitted, or declines payment of the PIP claims that are reasonable, necessary, and related. State Farm Mut. Auto. Ins. Co. v. Hyma Medical Ctr. Inc., 22 So. 3d 699, 700 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2305a]. On the other hand, a withdrawal case is governed by section 627.736(7)(a) where the insurer has made payments but then seeks to withdraw all future payments for the same injury. Id.
7Appellee filed a motion to strike the affidavit and peer review report on the record based on Perez v. United Auto. Ins. Co., 16 Fla. Weekly Supp. 296a (Fla. 11th Jud. Cir. Ct. Feb. 20, 2009).
