18 Fla. L. Weekly Supp. 172a

Online Reference: FLWSUPP 1802ORTI

Insurance — Personal injury protection — Coverage — Medical expenses — Valid medical report — Error to fail to consider peer review report offered in opposition to medical provider’s motion for summary judgment on grounds that it was not supported by independent medical examination and was obtained more than thirty days after claim was submitted — Examination under oath — Failure to attend — Error to enter summary judgment for provider where there are disputed facts regarding insured’s compliance with requests for EUO

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. TWO & TWO LLC D/B/A COMPLETE REHAB & MEDICAL CENTER OF HOLLYWOOD a/a/o JIMMY ORTIZ, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-000553. September 22, 2010. Honorable Peter B. Skolnik, Judge.

OPINION

(MURPHY, III, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the appeal by Appellant, United Automobile Insurance Company (herein “United Auto”), of the trial court’s corrected final judgment in favor of Appellee, Two & Two LLC D/B/A Complete Rehab & Medical Center of Hollywood a/a/o Jimmy Ortiz (herein “Two & Two”). The Court, having considered the briefs filed by the parties and being duly advised in premises and law, dispenses with oral argument and finds and decides as follows:

United Auto issued a policy of insurance to insured, Jimmy Ortiz, which provided personal injury protection (PIP) benefits. While this policy was in effect, Mr. Ortiz was involved in a motor vehicle accident on February 24, 2004. Thereafter, Mr. Ortiz began receiving chiropractic treatment from Two & Two. In turn, Mr. Ortiz assigned his rights to the PIP benefits to Two & Two.

Before the underlying case was filed United Auto scheduled Mr. Ortiz for two examinations under oath (EUO), however, he failed to appear for either EUO. Nevertheless, when United Auto failed to pay Two & Two’s claims, it filed a complaint for United Auto’s failure to pay the PIP benefits. United Auto answered Two & Two’s complaint and raised several affirmative defenses, including Mr. Ortiz’ failure to submit to a EUO.

As such, United Auto filed its motion for summary judgment based upon Mr. Ortiz’ refusal to attend either EUO. As to the EUO requirements under Mr. Ortiz’ insurance policy Section 1, governing the “Conditions” for “Personal Injury Protection,” provides as follows:

4. Examination Under Oath. As a condition precedent to receiving personal injury, “you” must cooperate with “us” in the investigation, settlement or defense of any claim or suit, including submitting to examination under oath by any person names by “us” when or as often as “we” may reasonably require at a place designated by “us” within reasonable time after “we are notified of the claim. Only the person being examined may be present during any examination.

Notably, the Assignment of Benefits to Two & Two executed by Mr. Ortiz likewise contemplates Mr. Ortiz’ compliance with United Auto’s request for an EUO, as paragraph 2.f. states that Mr. Ortiz was requested to:

f. Provide the provider with notice of each and every Independent Medical Examination (hereafter “IME” and statement or Examination Under Oath (hereafter “EUO”) which is scheduled for me.

Notwithstanding the provisions of Mr. Ortiz’ policy and the assignment, on February 8, 2008, the trial court denied United Auto’s motion for summary judgment, even though Mr. Ortiz failed to attend the EUOs.

Thereafter, Two & Two moved for summary judgment on the issue of the reasonableness, relatedness, and necessity of the treatment provided arguing that that United Auto’s peer review report prepared by Dr. Matthews was not based upon independent medical examination (IME) and was filed untimely, as it was filed thirty days after the claim.

Finding that Dr. Matthews’ peer review report was invalid for the reasons set forth by Two & Two, the trial court concluded that the peer review report was legally insufficient. Accordingly, the trial court determined that Two & Two’s services were reasonable, related and necessary (RRN), as a matter of law, and entered summary judgment in favor of Two & Two.

On January 1, 2009, the trial court entered a corrected final judgment awarding Two & Two the sum of $3,577.60, plus interest, for a total of $5,218.25, and reserved ruling on Plaintiff’s motion for attorney’s fees and cost.

Standard of Review:

In Business Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So. 3d 693, 695 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D199a], the Fourth District Court of Appeal reiterated the standard of review for orders granting summary judgment, as follows “[t]he standard of review for orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1392a]. We will affirm a summary judgment ‘only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.’ ” Id.”

Once the moving party has satisfied its summary judgment burden the burden shifts to the non-moving party, who must then establish the existence of a triable issue. Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a]. The opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and a conclusory affidavit is inadequate to create such an issue. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). While evidentiary matter offered in support of or opposition to a motion for summary judgment must be both relevant and competent as to the issues in the cause, it need not be in the exact form or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial. Holl at 45. Moreover, a movant’s affidavits are viewed strictly, whereas counter-affidavits are read more liberally. Id. The Court must consider all facts in the light most favorable to the non-moving party and draw all reasonable inferences against the moving party. See Albelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. Summary judgment is unavailable if the record raises “even the slightest doubt” as to the existence of an issue of fact. Id.

United Auto raises two issues on appeal: (1) the trial erred in entering summary judgment in favor of Two & Two as it failed to consider the peer review on the grounds that the peer review was invalid since it was not based upon an IME and because it was not obtained prior to the denial of the claim; and (2) the trial court erred in entering summary judgment where there was a genuine issue of material fact as to United Auto’s affirmative defense concerning Mr. Ortiz’ failure to submit to a EUO.

Based upon recent case law, which was not available to the trial court at the time of the final judgment, the Fourth District Court, contrary to Two & Two’s position advanced in its motion for summary judgment, recently concluded that an IME is not required for a peer review report to be valid. See United Auto. Ins. Co. v. Hollywood Injury Rehab Center, 27 So.3d 743, 744 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D334a].

Similarly unavailing is Two & Two’s argument on summary judgment that the peer review report was untimely. In United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So.3d 242 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c], a case that was also decided after the final judgment was entered, the Third District rejected such a position holding “that the thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable, or unnecessary treatment. Therefore, an insurer may challenge such treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted.” Upon the foregoing, the trial court’s order granting summary judgment in favor of Two & Two on the issue of RRN is reversed.

As to the trial court’s summary judgment in favor of Two & Two on United Auto’s affirmative defense that Mr. Ortiz failed to attend the EUOs, this issue is best explained by the Fourth District Court in Goldman v. State Farm Fire General Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1844a]. There, like here, where the policy provisions require the insured to submit to an examination under oath as a condition precedent to instituting a lawsuit, an insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy. Id. at 303. As there are issues of disputed fact concerning Mr. Ortiz’ compliance with the EUO policy provisions and requests, it was error for the trial court to enter summary judgment on the disputed facts here. Accordingly, it is

ORDERED AND ADJUDGED that the trial court’s corrected final judgment is hereby REVERSED and REMANDED.