18 Fla. L. Weekly Supp. 635a
Online Reference: FLWSUPP 1808SANC
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Error to strike affidavit of peer review physician offered in opposition to motion for summary judgment on issue of reasonableness, relatedness and medical necessity of claim where peer review arguably supplemented independent medical examination and did not expressly contradict it
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. STEVEN BERMAN D.C., P.A. D/B/A WEST DIXIE CHIROPRACTIC CENTER, A/A/O CAMILLO SANCHEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-117 AP & 10-179 AP. L.C. Case No. 06-28616 CC 23. April 28, 2011. On appeal from the County Court for Miami-Dade County, Myriam Lehr, Judge. Counsel: Lara J. Edelstein and Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, Miami, for Appellant. Deborah A. Green, The Green Law Firm, PL, for Appellee.
(Before SILVERMAN, REYES and MANNO SCHURR, JJ.)
(MANNO SCHURR, Judge) Appellant United Automobile Insurance Company (“United Automobile”) brings this appeal to reverse a final judgment based upon the trial court’s granting of a motion for summary judgment in favor of Appellee Steven Berman D.C., P.A., d/b/a West Dixie Chiropractic Center (“West Dixie”), assignee for Camillo Sanchez.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (citation omitted). This Court reviews a summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the “slightest doubt” exists, we must reverse. Interested Underwriters v. SeaFreight Line, Ltd., 971 So. 2d 892, 894 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2829a] (citing Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]).
Arguably, the peer review supplemented the IME, and Dr. Siegel’s affidavit should not have been stricken. See Bell v. Bailey, 639 So. 2d 1063, 1064 (Fla. 3d DCA 1994) (holding that the trial court erred in striking the plaintiff’s affidavit because “the plaintiff’s affidavit, at least arguably, supplemented her deposition testimony and did not expressly contradict it.”) Because Dr. Siegel’s affidavit was stricken, United Automobile could not contest whether the claim was unrelated, not medically necessary, or unreasonable. See generally United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60, 64 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (noting that an insurer’s assertion that a claim was unrelated, not medically necessary or was unreasonable may be made at any time, including after payment of the claim or after the 30-day time period for payment). 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]. (SILVERMAN and REYES, JJ., concur.)
