18 Fla. L. Weekly Supp. 157a
Online Reference: FLWSUPP 1801SALA Insurance — Personal injury protection — Denial of benefits — Valid medical report — Requirement of valid medical report applies only prior to withdrawal or termination of authorization for further treatment, not prior to outright denial of benefits — Where insurer denied claim, it was not barred from submitting affidavit of peer review doctor in opposition to summary judgment by fact that affidavit was not prepared within 30 days of submission of bills — Error to enter summary judgment in favor of insured on issue of reasonableness, relatedness and necessity of past treatment based on peer review doctor’s affidavit stating that insured had reached maximum medical improvement, that no “further” treatment was necessary, and that symptoms were causally related
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. HAYDEE MORALES SALAZAR,Appellee. Circuit Court, 11th Judicial Circuit (Apellate) in and for Miami-Dade County. Case No. 08-124 AP. L.C. Case No. 04-15814 CC 05. August 23, 2010. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Florida, Shelley J. Kravitz, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of General Counsel for United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before BROWN, PLATZER, and FREEMAN, JJ.)
(PER CURIAM.) United Automobile Insurance Company appeals a final judgment in favor of Haydee Morales Salazar (“Salazar”).1 The trial was based on Salazar’s complaint against United Auto for breach of contract for failure to pay any Personal Injury Protection (“PIP”) benefits. Salazar was involved in an accident on July 14, 2003. She received medical services from Professional Medical Group from August 18, 2003 through November 3, 2003 and submitted medical bills to United Auto. United Auto failed to pay any benefits, alleging that the treatment was not reasonable, related or necessary (“RRN”) and that Salazar failed to provide timely notice of the incident to United Auto.
Salazar filed a motion for summary judgment together with an affidavit of Dr. Lopez which asserted that all treatment was RRN. United Auto responded by filing two affidavits from Dr. Musa Ris. The affidavits of Dr. Musa Ris, based on his independent medical examination (IME) report and his peer review report, asserted that treatment was not RRN.
Prior to trial, Salazar successfully excluded Dr. Musa Ris’ affidavit regarding the peer review report because it was not conducted within thirty days of submission of the medical bills. On the day of trial, the court entertained Salazar’s motion for summary judgment on the issue of RRN. United Auto argued that Dr. Lopez’ affidavit (filed in support of Salazar’s motion for summary judgment) was not properly notarized. The trial court agreed and, in effect, struck the affidavit. Salazar then argued that it was nonetheless entitled to summary judgment on the issue of RRN on the basis of Dr. Musa Ris’ affidavit. Therein, Dr. Musa Ris states that the injuries were causally related to the subject accident but treatment after the date of the IME would not be reasonable, related, or necessary.2
Salazar successfully argued to the court that because Dr. Musa Ris stated that no furthertreatment was necessary and that the symptoms were causally related, it followed that the treatment leading up to the date of the IME was RRN. This, argued Salazar, entitled her to Summary Judgment.
The court granted Salazar a partial summary judgment motion on the issue of RRN. The sole remaining issue remaining for trial was United Auto’s affirmative defense of late notice, which is not the subject of this appeal. This appeal ensued.
Summary judgment should be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects potential issues of material fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party, and summary judgment must be denied. Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1098 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D195a]. “All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Guirlinger v. Goldome Realty Credit Corp., 593 So. 2d 1135, 1136 (Fla. 1st DCA 1992).
Trial Court Erred in Striking the Doctor’s Peer Review Report and Affidavit As Untimely
If an insurer denies a claim completely (that is, refuses to make any payments whatsoever), or denies one or more discrete charges or claims, the insurer’ actions constitute a denial of benefits. In such instances, section 627.736(4) of the Florida Statutes applies. See Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Auto. Ins. Co., 21 So. 3d 858, 860 (Fla. 3d DCA 2009)[ 34 Fla. L. Weekly D2177a].
The Third District holds that proof procured to support the denial of personal injury protection claim can be provided at any time. United Auto. Ins. Co. v. Perez, 21 So. 3d 886, 887 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2267a] (doctor’s peer review report filed by insurer in support of its denial of PIP benefits was not untimely, even though filed nearly three years after insurer denied insured’s claim and more than two years after insured brought suit for breach of the insurance contract).
In Perez, the plaintiff filed suit against the insurer in 2004 for breach of contract for failure to pay any of her medical bills. In 2006, the insurer filed a report that had been prepared by a doctor in 2005. That report stated that none of the care rendered was reasonable, necessary, or related. The Perez plaintiff argued that the report was untimely, and successfully moved to strike the peer review report and to prohibit the doctor from testifying. Without the doctor’s peer review report, the insurer had no evidentiary support for its claim that the plaintiff’s treatment was not reasonable, related or necessary. Florida’s Third District Court of Appeal disagreed. In Perez, the Third District held:
[I]n these cases we concluded that where, as here, an insurer fails to pay any or some of an insurer’s medical bills, section 627.736(4)(b) of the Florida Statutes applies. That provision requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; that such proof may be supplied by a report prepared in accordance with section 627.736(7)(a) or otherwise; and that such proof may be provided at any time.
Id. at 887.
Similarly, in United Automobile Insurance Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 21 So. 3d 60, 67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b], the Third District Court stated, in pertinent part:
although Bermudez,3 in dicta, suggests that Viles4 also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment. Viles, 726 So. 2d at 321 (citations omitted). . . .
Id.
In a subsequent case, State Farm Mutual. Automobile Insurance Co. v. Hyma Med. Ctr., Inc., 22 So. 3d 699, 700-01 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2305a], the Third District explains:
[t]his case is a denial case, where the insurer never paid any of the claims. A denial case is governed by paragraph 627.736(4)(b), Florida Statutes. As explained in Santa Fe5, paragraph (4)(b) pertains to circumstances where the insurer has either reduced, omitted, or declined payment of PIP claims that are reasonable, necessary, and related.
By contrast, paragraph 627.736(7)(a), Florida Statutes, is applicable in a withdrawal case. In a withdrawal case the insurer has made payments but then seeks to withdraw all future payments for the same injury. In that situation paragraph (7)(a) sets forth the necessary requirements that an insurer must satisfy before it may withdraw future PIP benefits. (Citations omitted).
In this instance of an outright denial of benefits, United Auto was not barred from submitting the doctor’s affidavit in defense of summary judgment. Dr. Musa Ris’ affidavit concluded that the treatment was not reasonable, not related, and not medically necessary, and thereby created a genuine issue of material fact regarding the treatment of the insured. Accordingly, the trial court erred in granting summary judgment in favor of Salazar on the issue of RRN.
Partial Summary Judgment on the Issue of RRN was improper
Salazar carries the burden of proving that the medical expenses are reasonable and necessary. Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. It is not United Auto’s role to prove that expenses are unreasonable or that a given service is not necessary. Id.
A plaintiff in a PIP case has the burden of establishing that the payments it seeks were reasonable, related to the accident, and necessary for treatment. Derius, 723 So. 2d 271. “The party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact.” City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D1793b] (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)). A reviewing court must consider the evidence contained in the record, including any supporting affidavits, in a 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] If the slightest doubt exists, the summary judgment must be reversed. Id.
Salazar did not meet her burden in establishing RRN. Although the court awarded summary judgment on the RRN issue based on the wording of Dr. Musa Ris’ affidavit, it failed to consider the other two necessary prongs of a successful PIP claim, namely reasonability and necessity. Dr. Musa Ris’ affidavit stated that Salazar had reached maximum medical improvement and that no further treatment would be RRN. United Auto argued that the doctor never indicated at what specific point in time that maximum medical improvement had been reached. The trial court also concluded that since Dr. Musa Ris’ affidavit stated that Salazar’s symptoms were “causally related,” that it also indicated that the treatment was, in totality, RRN.
Accordingly, we find that the affidavit and peer review report created a genuine issue of disputed fact as to reasonableness, relatedness, and medical necessity. Thus, we reverse and remand to the trial court.
Any attorney’s fees awarded are also reversed pursuant to section 627.428(1) of the Florida Statutes. “Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees.” Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].
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1Salazar was precluded from filing an answer brief.
2The stricken peer review affidavit of Dr. Musa Ris stated that no treatment after the deductible was RRN.
3United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008)[ 33 Fla. L. Weekly D1201a].
4United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998).
5United Auto. Ins. Co. v. Santa Fe Med. Ctr. (a/a/o Telmo Lopez), 21 So. 3d 60, 67 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b].
