18 Fla. L. Weekly Supp. 259a
Online Reference: FLWSUPP 1803BUER
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to exclude affidavit and peer review report prepared by insurer’s expert and filed in opposition to summary judgment on ground that insurer did not obtain report prior to denying claim
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. FRIEDMAN CHIROPRACTIC CENTER, P.A. a/a/o MIRTHA BUERGO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-290 AP & 10-011 AP (Consolidated). L.C. Case No. 08-000435 CC 26. January 6, 2011. An Appeal from the County Court for Miami-Dade County, Patricia Marino-Pedraza, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.
(Before DONNER, ROTHENBERG, and SHAPIRO, JJ.)
(SHAPIRO, Judge.) This is an appeal from a 2009 final judgment and final judgment for attorney’s fees and costs by the county court. In 2007, the insured, Mirtha Buergo sustained personal injuries in an automobile collision. She sought treatment at Friedman Chiropractic Center P.A., the Appellee, (Friedman) until October 25, 2007.
Friedman sued for damages and breach of contract for personal injury protection (PIP) benefits. Appellant, United Automobile Insurance Company (United) filed an answer and affirmative defenses denying the treatment was reasonable, related and necessary (RRN) after September 6, 2007.1 The issue on appeal is whether the lower court erred in granting summary judgment for Friedman by refusing to consider the opposing affidavit, peer review report and addendum of Dr. Glen Siegel, D.C. because it was obtained after United denied the claim.2 We answer this issue in the affirmative.
United avers on appeal that the lower court erred because it was not required to obtain a valid medical report under section 627.736(7)(a) before denying the amount of the medical bills submitted relying on United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. Although Friedman disagrees with Santa Fe, it concedes that this Appellate Court is bound by Santa Fe and that any reversal should be based on Santa Fe.
The Third District Court of Appeal in Santa Fe receded from that portion in United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a]3 which suggested that the United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D14a]4 requirement of a valid report also applies to both withdrawal and denial of PIP benefits. Id. at 67. 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 65.5
As explained in Partners in Health Chiro. v. United Auto. Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a] (following Santa Fe), neither Viles nor Bermudez requires a valid medical report as a condition precedent to a denial or partial reduction of medical bills or claims. Id. at 863. Friedman correctly points out that the lower court did not have the benefit of Santa Fe or Partners.
Friedman mentions that both Santa Fe and United Auto. Ins. Co. v. Prof. Med. Group Inc. a/a/o Marvelis Bauza, 35 Fla. L. Weekly D34a (Fla. 3d DCA Dec. 23, 2009)6 were stayed pending the disposition of Custer Med. Ctr. a/a/o Maximo Masis v. United Auto. Ins. Co., 35 Fla. L. Weekly S640a (Fla. Nov. 4, 2010).7 But, the Custer decision is distinguishable as it involves a different PIP statute, section 627.736(7)(b) and does not mention either the decisions of Santa Fe or Bauza.
Based on Santa Fe, we find that the lower court erred in excluding the affidavit, peer review report and addendum8 of Dr. Siegel in opposition to summary judgment as it would have raised a material issue of fact as to whether the medical bills were reasonable, related and necessary as section 627.736(4)(b) applied to this action. Therefore, the final judgment and the final judgment of attorney’s fees and costs in favor of Friedman is REVERSED AND REMANDED. Friedman’s motion for appellate attorney’s fees pursuant to section 627.428(1), Florida Statutes (2005) is hereby DENIED. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000) [25 Fla. L. Weekly S1103a]. (DONNER and ROTHENBERG, JJ. concur.)
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1United filed a motion for final summary judgment with accompanying affidavits. The opposing affidavit and peer review report was filed on December 29, 2008. On that date an order granted partial summary judgment to Friedman for dates between July 19, 2007 to September 6, 2007.
2The standard of review for the granting a summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. The reviewing court must determine whether there are any genuine issues of material fact and whether the lower court granted summary judgment correctly as a matter of law. Volusia County v. Aberdeen at Ormond Beach, LP., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
3The Third District Court of Appeal in Bermudez, 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.
4In 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. Viles, 726 So. 2d at 320.
5A 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.
6The lower court had relied upon United Auto. Ins. Co. v. Prof. Med. Group, Inc. a/a/o Marvelis Bauza, 16 Fla. Weekly Supp. 232a (11th Jud. Cir. Ct. Feb. 3, 2009) which had held that a peer review report had to be obtained before PIP benefits were denied. That case was reversed in United Auto. Ins. Co. v. Prof. Med. Group Inc. a/a/o Marvelis Bauza, 35 Fla. L. Weekly D34a (Fla. 3d DCA Dec. 23, 2009) which held based on Santa Fe that the peer review report was not an invalid report under section 627.736(7)(a) even though it was not obtained before the PIP benefits were denied. The Bauza decision is subject to revision or withdrawal.
7The Custer decision quashed the decision in United Auto. Ins. Co. v. Custer Med. Ctr., 990 So. 2d 633, 635 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2146a] and reinstated the decision of the circuit court in Custer Medical Ctr. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 431b (Fla. 11th Cir. Ct. Feb. 14, 2006) and therefore upholding the reversal of the county court’s final judgment entered following a directed verdict and remanding for a new trial finding that the Third District Court of Appeal erred in holding that attendance at a medical examination and testimonial exam without counsel is a condition precedent to coverage not merely benefits and that the circuit court was correct that an insurer had the burden of proof to prove its affirmative defense in that it was required to present evidence that the insured unreasonably failed to attend a medical examination without explanation after notice. The Custer decision is subject to revision or withdrawal.
8It is undisputed by the parties that the addendum was filed after the discovery cut off date. But, the transcript of the hearing below reflects that no Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) analysis was conducted by the lower court which should have been a part of its exercise of discretion.
