18 Fla. L. Weekly Supp. 21a
Online Reference: FLWSUPP 1801ECHE
Insurance — Personal injury protection — Summary judgment — Opposing affidavits — Where insurer filed affidavit of physician based on independent medical examination of insured opining that further treatment would not be reasonable, related or necessary and later filed second affidavit based on peer review performed one month later opining that only some of treatment rendered was reasonable, related or necessary; trial court erred in disregarding second affidavit as bald repudiation of first affidavit
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PROFESSIONAL MEDICAL GROUP, INC., a/a/o FRANK NUNEZ ECHEVARRIA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-405 AP & 08-571. County Case No. 07-007884 CC 25. October 25, 2010. On appeal from Final Summary Judgment entered by the Honorable Judge Jacqueline Schwartz, Miami-Dade County Court Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company Office of the General Counsel, for Appellant. Virginia M. Best, Lopez & Best, Law Center at Brickell Bay, Co-Counsel for Appellee.
(Before FERNANDEZ, ADRIEN, and THOMAS, JJ.)
(FERNANDEZ, Judge.) Appellant United Automobile Insurance Company (“United Auto”) appeals the trial court’s decision granting Appellee Professional Medical Group, Inc.’s (“Professional Medical”) Motion for Summary Judgment.
Frank Nunez Echevarria (“Echevarria”) sustained injuries when he was involved in a motor vehicle accident on December 2, 2003. He received medical treatment from Dr. Jose Vazquez at Professional Medical from December 4, 2003 through March 4, 2004. Echevarria assigned his benefits under his United Auto policy to Professional Medical who submitted medical bills for the period of treatment to United Auto.
On January 22, 2004, Dr. Peter Millheiser performed an independent medical examination (“IME”) of Mr. Echevarria. Dr. Millheiser diagnosed claimant with cervical sprain, thoracic sprain, and left shoulder sprain. In his report, the doctor wrote that, “Further diagnostic tests and/or treatment is not medically reasonable, necessary, or related to this accident . . .” He did not comment on the previous treatment that claimant received.
On February 24, 2004, Dr. Millheiser performed a peer review. In his report, Dr. Millheiser wrote that no more than 2 office visits or 7 sessions of physical therapy were reasonable, related or necessary (“RRN”) in connection with Echeverria’s injuries that were sustained in the crash.
Professional Medical moved for summary judgment arguing that the medial bills were RRN. In opposition, United Auto filed the affidavit of Dr. Millheiser containing the findings of his peer review. The trial court granted Professional Medical’s motion for summary judgment and for several reasons, significantly among which was the court’s determination that Dr. Millheiser’s peer review affidavit conflicted with his IME affidavit in violation of Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) (holding that “a party when met by a motion for summary judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy”), and for this reason did not consider the peer review affidavit of Dr. Millheiser that was submitted in opposition to summary judgment.
This case is significantly similar to United Automobile Insurance Company v. Seffar, 37 So.3d 379 (Fla. 3rd DCA 2010) [35 Fla. L. Weekly D1302a]. In United v. Seffar, the Third District Court of Appeal determined that Dr. Millheiser’s IME and peer review affidavits did not conflict under circumstances very similar to the case at bar and held that the Ellison rule did not apply under these circumstances. We recognize that the trial court did not have the benefit of United v. Seffar, as the case was recently decided. Because the peer review affidavit of Dr. Millheiser should have been considered by the trial court, we reverse the Final Summary Judgment and remand for further proceedings. (FERNANDEZ, ADRIEN and THOMAS, JJ, CONCUR.)
