18 Fla. L. Weekly Supp. 28a
Online Reference: FLWSUPP 1801RGON Insurance — Personal injury protection — Coverage — Medical expenses — Denial of benefits — Valid medical report — Where insurer paid some medical bills after medical provider completed treatment on insured, trial court erred in excluding peer review report on reasonableness, relatedness and necessity of treatment on ground that it was obtained after treatment was rendered — Where some but not all claims from provider are rejected or reduced as unreasonable, unrelated or unnecessary, section 627.736(4)(b) applies and insurer is not required to obtain report or proof before denying claim
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CLINIC CENTER, INC., A/A/O RAFAEL GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-186 AP & 09-279 AP (Consolidated). L.C. Case No. 08-3468 CC 25. October 27, 2010. On appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Kevin W. Whitehead, Downs Brill Whitehead, for Appellee.
(Before SOTO, VENZER and SAYFIE, JJ.)
(SAYFIE, Judge.) Appellant United Automobile Insurance Company (“United Automobile”) brings this appeal to reverse a final judgment based upon the trial court’s grant of a motion for summary judgment in favor of Appellee Clinic Center, Inc. (“Clinic Center”), assignee for Rafael Gonzalez (“Mr. Gonzalez”). The Court has jurisdiction pursuant to the Florida Rules of Appellate Procedure 9.030(c)(1)(A).
Mr. Gonzalez sought treatment from and assigned his rights to Clinic Center for injuries he sustained in an automobile accident. United Automobile only paid some of Mr. Gonzalez’s medical bills. Thereafter, Clinic Center filed an action in county court against United Automobile for breach of contract under section 627.736 of the Florida Statutes.
As the case progressed, Clinic Center filed a motion for protective order seeking an expert witness fee prior to the deposition of Dr. Hidalgo, Mr. Gonzalez’s treating physician. The trial court granted Clinic Center’s motion, and the parties entered an Agreed Order regarding the expert witness fee. Thereafter, Clinic Center filed a motion for summary judgment on the grounds that all treatment provided to Mr. Gonzalez was reasonable, related and necessary (RRN). In opposition of Clinic Center’s motion for summary judgment, United Automobile filed an affidavit and peer review report of Dr. Siegel, which alleged that some of the prior treatment was not RRN. The trial court refused to consider Dr. Siegel’s peer review report and granted Clinic Center’s motion for summary judgment. Subsequently, the trial court entered a final judgment in favor of Clinic Center.
United Automobile asserts three grounds as the basis of its appeal: (1) the trial court erred in granting summary judgment in favor of Clinic Center on RRN where Clinic Center’s affidavits did not establish that an accident occurred which left a genuine issue of disputed fact, (2) the trial court erred in granting summary judgment in favor of Clinic Center on RRN where United Automobile’s peer review, which may have created a genuine issue of disputed fact, was not considered because it was obtained after the treatment was rendered, and (3) the trial court erred in requiring the insurer to pay an expert witness fee to take the deposition of the supervisor of the treating physicians. Of the three grounds, we REVERSE and REMAND the cause for a new trial based on the reason provided below.
We find merit in United Automobile’s contention that the trial court should not have excluded Dr. Siegel’s peer review report because it was obtained after treatment was rendered. United Automobile argues that section 627.736(4)(b) of the Florida Statutes is applicable, and the trial court should have considered Dr. Siegel’s affidavit and peer review report. Conversely, Clinic Center argues that 627.736(7)(a) of the Florida Statutes is the relevant statutory provision since United Automobile alleged accord and satisfaction in its affirmative defenses and issued checks to Clinic Center on October 25, 2007.
The Third District has provided some clarity as to when a peer report is required when denying or withdrawing a claim. United Auto. Ins. Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So. 3d 60, 65 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (emphasis supplied). In Santa Fe Medical Center, the court noted that subsection (4)(b) of Florida Statute 627.736 pertains to circumstances where the insurer has reduced, omitted, or denied payment of personal injury protection (PIP) claims. Subsection (7)(a) of Florida Statute 627.736 applies when an insurer withdraws future PIP benefits. Id. at 63. Further, the court reasoned that an insurer is not required to obtain a valid report before denying a claim:
. . . However, if the insurer believes that the claim is not reasonable, related, and necessary and denies the claim, it may obtain and offer reasonable proof at any time to establish that the insurer is not responsible for payment of the claim. “[A]ny payment shall not be deemed overdue when an insurer has reasonable proof to establish that the insurer is not responsible for payment.” § 627.736(4)(b). “Reasonable proof’ is not defined, but it is clear that subsection (4)(b) does not require that a “valid report” be obtained to protect an insurer from being assessed statutory penalties when denying a claim. It is important to note that the statute does not require the insurer to obtain a report or proof under subsection (4)(b) before denying a claim.
Id. at 65 (emphasis supplied).
In Partners in Health Chiropractic, a/a/o Neocles Lebrun, v. United Auto. Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a], the Third District noted:
where some but not all claims or bills from a particular provider or treating physician are being rejected or reduced as unreasonable, unrelated, or unnecessary, section 627.736(4)(b) likewise applies.
Id. at 864 (emphasis supplied).
Here, the record reflects that United Automobile paid some of the bills after Clinic Center completed treatment on Mr. Gonzalez. As such, the applicable statutory provision is section 627.736(4)(b) of the Florida Statutes. See United Auto. Ins. Co. v. Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a]. Further, the trial court should have allowed United Automobile to utilize Dr. Siegel’s peer review report in support of its opposition to Clinic Center’s motion for summary judgment. The trial court misapplied the law by excluding United Automobile’s peer review report which may have created a genuine issue of disputed fact about the reasonableness, relation, and medical necessity of treatment obtained by Mr. Gonzalez.
Therefore, we reverse for the stated reason and remand for a new trial. Further, reversal of the underlying judgment requires reversal of an award of attorney’s fees and costs. S & I Invs. v. Payless Flea Mkt., Inc., 40 So. 3d 48, 49 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1451a]; Amorello v. Tauck, 824 So. 2d 244 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1721c]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
REVERSED and REMANDED. (SOTO and VENZER, JJ., concur.)
