18 Fla. L. Weekly Supp. 747a
Online Reference: FLWSUPP 1809DOCT
Insurance — Personal injury protection — Examination under oath — Failure to attend — Error to enter summary judgment in favor of medical provider on EUO no-show defense where there was factual dispute as to whether insurer received notice of insured’s request to reschedule EUO and whether insured’s rationale for failing to attend EUO was reasonable — Error to enter summary judgment in favor of provider upon finding that peer review report that opined that some treatment prior to certain date was not reasonable, related and necessary was invalid because it conflicted with independent medical examination report opining that all treatment after that date was not reasonable, related and necessary — Peer review report created genuine factual issue such that summary judgment should not have been entered
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. QUALITY MEDICAL GROUP, INC., a/a/o MELISSA ANN DOCTOR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-585 AP, Consolidated with 10-395 AP. L.C. Case No. 08 6186 CC 23. July 22, 2011. An Appeal from the County Court for Miami-Dade. Eric Hendon, Judge. Counsel: Michael J. Neimand, for Appellant. Michael D. Kaplan, for Appellee.
Cert. Granted at 37 Fla. L. Weekly D1846c
(Before CARDONNE ELY, PLATZER, SCHWARTZ, JJ.)
(PER CURIAM.) Defendant below, United Automobile Insurance Company (“United”), appeals a final judgment in favor of Quality Medical Group (“Quality Medical”) for PIP benefits. This Court, having read the briefs and considered the arguments presented, is fully advised in the premises and finds as follows.
In response to Quality Medical’s complaint for PIP benefits, United, filed an Answer to the Complaint denying that the treatment rendered to the insured was reasonable, related and necessary (“RRN”) to the reported automobile accident. The Answer specifically raised the affirmative defense that the insured was not entitled to PIP benefits because she failed to attend the examination under oath (“EUO”), which was a condition precedent to obtaining benefits. Thereafter, United filed a motion for summary judgment on its EUO affirmative defense. The motion for summary judgment was supported by an affidavit of the litigation adjuster attesting that United requested and scheduled the insured to submit to an EUO on a specified date. In opposition, Quality Medical filed the insured’s affidavit attesting that after receiving the EUO notice, the insured notified United by telephone that she would be out of town on the scheduled date and requested an alternate date to attend the EUO. According to United, it did not have record of the insured’s phone call. Thereafter, Quality Medical filed a cross-motion for summary judgment on United’s EUO affirmative defense. At a hearing on Quality Medical’s motion, the trial court found that the insured’s proffered reason for not appearing at the EUO was reasonable and granted Quality Medical’s motion for summary judgment.
Quality Medical also filed a motion for summary on the ground that all of the treatment rendered to the insured was RRN. In support thereof, Quality Medical filed the affidavit of the treating physician. In opposition, United filed the affidavit of the doctor who performed the independent medical examination (IME) stating that treatment after February 27, 2006 was not RRN. United’s doctor also submitted a peer review opining that some of the treatment prior to February 27, 2006 was not RRN. The trial court found that the IME contradicted the peer review and granted Quality Medical motion for summary judgment as to RRN through February 27, 2006. The trial court further held that a question of fact existed as to all treatment after February 27, 2006. However, Quality Medical withdrew its claims for service after February 27, 2006. Thereafter, the trial court entered final judgment in favor of Quality Medical. This appeal follows.
United’s first issue on appeal is whether the trial court erred in granting Quality Medical’s motion for summary judgment as to the EUO affirmative defense. United’s second issue on appeal is whether the trial court erred in granting summary judgment in favor of Quality Medical as to RRN based on opinions pronounced in the peer review and IME reports.
The standard of review for summary judgment is de novo and requires this court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is proper if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
With regard to the first issue on appeal, because the evidence presented at the summary judgment hearing was conflicting as to whether the insured contacted United to reschedule the EUO, a question of fact was presented for resolution by the trier of fact. The determination of whether United received notice of the insured’s request to reschedule and whether the insured’s rationale for failing to attend the EUO was reasonable raises a genuine issue of material fact. As such, the entry of a summary judgment as to this issue was inappropriate. See generally, Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D1893a]. Custer Medical Center [v. United Automobile Ins. Co.], 2010 WL 4340809 (Fla. Nov. 4, 2010) [35 Fla. L. Weekly S640a]; Lamora v. United Auto. Ins. Co., 8 Fla. L. Weekly Supp. 542a, 542 (Fla. 11th Cir. Ct. June 19, 2001).
As to United’s second issue on appeal, we agree, the trial court’s ruling was improper. Specifically, the trial court inferred that because United’s IME report indicated that no further treatment was necessary after February 27, 2006, that all prior treatment must have been necessary. On this basis, the trial court held that the IME contradicted the peer review. This was not proper on a motion for summary judgment in which the evidence must be viewed in the light most favorable to the non-moving party. Termaforoosh v. Wash, 952 So. 2d 1247, 1249 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D907a]. See also, Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. Thus, the trial court’s determination that the peer review was not valid because it was in conflict with the IME report was inappropriate. As such, the peer report created a genuine issue of material fact as to the RRN of the insured’s treatment such that summary judgment should not have been entered. United Automobile Ins. Co., v. Restrepo, 17 Fla. L. Weekly Supp. 162a (Fla. 11th Cir. App. Ct. Dec. 14, 2009). Accordingly, it is hereby,
ORDERED and ADJUDGED that the final judgment is REVERSED and REMANDED.
DONE and ORDERED.
