19 Fla. L. Weekly Supp. 979a
Online Reference: FLWSUPP 1912ANTEInsurance — Personal injury protection — Denial of claim — Valid medical report — There was no requirement that peer review report offered to support denial of medical provider’s claim comply with statutory requirements for valid report in support of withdrawal of benefits or that report be obtained by insurer before denial, and trial court erred in rejecting report filed in opposition to summary judgment for failure to meet those requirements — Trial court also erred in rejecting peer review physician’s affidavit as technically or legally insufficient where affidavit and attached report, which opined that treatment was not reasonable, related, and necessary because it was duplicative or unsubstantiated and which detailed the bases for this opinion, raised doubt as to existence of issues of fact — Abuse of discretion to fail to grant insurer’s motion for relief from technical admissions where motion was timely, answer and other filings contradict technical admissions, and provider did not establish prejudice
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. NORTH MIAMI THERAPY CENTER, INC., a/a/o Bruno Antenor, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE09-063958 (21) (Consolidated with CACE10-027816). L.T. Case No. COCE05-002293. February 3, 2012. Counsel: Michael J. Neimand, Office of the General Counsel-Trial Division, Miami, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami; and Justin G. Morgan, Law Offices of Justin G. Morgan, P.A., Weston, for Appellee.OPINION
(PHILLIPS, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon United Automobile Insurance Company’s appeal from the lower court’s Final Judgment in Favor of Plaintiff. This Court, having carefully considered the appellate briefs, the trial court record, the applicable law and being duly advised in the premises, dispenses with oral argument, and finds that the lower court’s Final Judgment in Favor of Plaintiff must be reversed as set forth below.I. Facts and Procedural History
Bruno Antenor (“Mr. Antenor”) was involved in an automobile accident on August 30, 2004. Subsequently, he sought treatment with North Miami Therapy Center, Inc. (“NMTC”) and assigned his right to personal injury protection (“PIP”) benefits to NMTC. NMTC, as assignee, submitted Mr. Antenor’s bills to United Automobile Insurance Company (“UAIC”). UAIC did not pay any of these bills.
On February 7, 2005, NMTC filed suit against UAIC in county court. UAIC defended, claiming that the treatment provided was not reasonable, related or medically necessary (“RRN”). In support of its defense, UAIC filed Dr. Sulim Krimshtein’s (“Dr. Krimshtein”) peer review report, dated December 28, 2008.
Along with its complaint, NMTC served requests for admissions upon UAIC. However, UAIC failed to timely respond to NMTC’s request for admissions thus creating a “technical admission” as to the issue of RRN under Florida Rule of Civil Procedure 1.370(a).1 Citing inadvertence as the reason for its failure to timely respond, UAIC filed a motion for relief from admissions, along with its proposed responses, on May 12, 2005. UAIC did not schedule a hearing on its motion.
NMTC moved for summary judgment in April, 2009. In opposition to NMTC’s motion, UAIC filed Dr. Krimshtein’s affidavit. “A true and correct copy of [his] peer review report” was attached to and made part of the affidavit. (R. 594.) Both documents contested the reasonableness, relatedness and medical necessity of Mr. Antenor’s treatment.
On September 16, 2009, the trial court held a summary judgment hearing in this matter. The trial court orally pronounced that Dr. Krimshtein’s affidavit was legally insufficient because he failed to provide adequate bases for his opinion and identify his competency to give such opinion. In addition, the trial court found that the peer review report was conclusory, did not satisfy the requirements of section 627.736(7)(a), Florida Statutes and conflicted with the “technical admission” as to RRN. At that time UAIC orally renewed its motion for relief from admissions; however, the trial court refused to grant such relief.2 Consequently, the trial court by written order, dated September 16, 2009, granted NMTC’s motion for summary judgment.3 Subsequently, the trial court entered a Final Judgment in Favor of Plaintiff on November 2, 2009. On November 24, 2009, UAIC filed its notice of appeal.
Pursuant to the granting of final judgment in its favor, NMTC moved for attorney’s fees and costs. The trial court entered a Final Judgment in favor of Plaintiff regarding Attorney’s Fees and Costs on June 20, 2010. On July 2, 2010, UAIC filed its notice of appeal of that order. In the interest of judicial economy, this Court has consolidated the two appeals.
On appeal, UAIC argues that the trial court erred in granting summary judgment in favor of NMTC when Dr. Krimshtein’s peer review report and affidavit created a genuine issue of material fact. UAIC asks this Court to consider whether the trial court erroneously concluded that the peer review report was invalid pursuant to section 627.736(7)(a), Florida Statutes, whether the trial court erroneously rejected the affidavit based on legal insufficiencies contained therein and whether the trial court erred in denying UAIC relief from technical admissions. Moreover, UAIC avers that reversal of the underlying judgment requires reversal of the same regarding attorney’s fees and costs.II. Standard of Review
The standard of review for orders granting summary judgment is de novo. Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So. 3d 693, 695 (Fla. 4th DCA 2010) (citing Cohen v. Arvin, 878 So. 2d 403, 405 (Fla. 4th DCA 2004)). A trial court’s ruling on a Florida Rule of Civil Procedure 1.370(b) motion is reviewed for an abuse of discretion. Asset Mgmt. Consultants of Virginia, Inc. v. City of Tamarac, 913 So. 2d 1179, 1179 (Fla. 4th DCA 2005).III. Analysis
“If an insurer either denies a claim completely, that is refuses to make any payments whatsoever, or denies one or more discrete charges or claims . . . the insurer’s actions constitute a “denial” of benefits and section 627.736(4), Florida Statutes applies.” See § 627.736(4)(b), Fla. Stat. (2005), and Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So. 3d 858, 860 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]. “Section 627.736(4)(b) requires only that an insurer have reasonable proof that a rejected claim or claims” are not RRN. Id. at 864. “[W]hile a section 627.736(7)(a) report may be utilized for this purpose,” such a report is not required to deny a claim under section 627.736(4)(b). Id. at 861 (citing United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001), and State Farm Mut. Auto. Ins. Co. v. Rhodes & Anderson, D.C., P.A., 18 So. 3d 1059, 1064 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D839a] (holding that denial of claim does not implicate section 627.736(7)(a) so as to require a report)). Moreover, section 627.736(4)(b) permits the insurer to assert, “at any time, including . . . after the 30-day time period for payment,” that “the claim was unrelated, was not medically necessary or was unreasonable.” See § 627.736(4)(b), Fla. Stat. (2005), and United Auto. Ins. Co. v. Millennium Diagnostic Center, Inc., 12 So. 3d 242, 246 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c] (confirming that an insurer may at any time challenge claims that are not RRN, and is permitted to rely on a valid report, as defined in section 627.736(7)(a), Florida Statutes, even if that report is obtained more than thirty (30) days after the claim was submitted).
By contrast section 627.736(7)(a), Florida Statutes is applicable in a “withdrawal” case, in which insurer has made payments but then seeks to withdraw all future payments for the same injury.4 Therefore, an insurer’s obligation to first obtain a medical report pursuant to section 627.736(7)(a) applies only to withdrawal, as opposed to denial, of payment to a treating physician. United Auto. Ins. Co. v. Sante Fe Med. Ctr., 21 So. 3d 60, 64-66 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b]. In fact, none of the valid report requirements of section 627.736(7)(a) applies to an insurer’s denial of payment to a treating physician. See, e.g., Rhodes & Anderson, 18 So. 3d at 1059 (holding that PIP insurer did not have to first obtain a report from a like-licensed physician in order to deny payment to a treating physician), and State Farm Mut. Auto. Ins. Co. v. Hyma Med. Ctr., 22 So. 3d 699, 701 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2305a] (rejecting argument that insurer’s reviewing physician’s report did not comply with requirement that report be factually supported by examination and treatment records under section 627.736(7)(a) because case involved a denial of claim) .
Therefore, the lower court erroneously rejected the Dr. Krimshtein’s peer review report. UAIC denied payment. Therefore, section 627.736(4) applies and the trial court did not need to either look to section 627.736(7)(a) or to determine whether the report complied with the requirements of that provision. Partners in Health Chiropractic, 21 So. 3d at 863 (citing Sante Fe. Med. Ctr., 21 So. 3d at 60). Because section 627.736(4)(b) requires only “reasonable proof” that the claims are not RRN, Dr. Krimshtein’s affidavit and peer review report satisfied the requirements of the applicable section. In addition, UAIC could challenge the RRN of the Mr. Antenor’s treatment at any time. The “first obtained” language of section 627.736(7)(a) is not controlling, and UAIC was not required to “first obtain” the report before denying payment. The trial court erred in finding otherwise. See, e.g., Hyma Med. Ctr., Inc., 22 So. 3d at 699 (holding that, in a denial case, where insurer never paid any claims, circuit court could not uphold summary judgment on the ground that physician’s affidavit submitted by insurer did not satisfy statute governing withdrawal of benefits), and United Auto. Ins. Co. v. Eduardo J. Garrido, D.C., P.A., 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b] (reversing summary judgment on the issue of RRN because an insurer’s obligation to first obtain a medical report that treatment was not RRN applied only to withdrawal, as opposed to denial, of payment to the treating physician).
In Holl v. Talcott, 191 So. 2d 40 (Fla. 1996), the Supreme Court established that while a movant’s affidavits are viewed strictly, counter-affidavits are read more liberally. Id. at 45-46. (explaining that while the evidence introduced by the non-moving party 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 that would be required of a witness”). Deficiencies in such counter-affidavits, even if essential, are correctable. McCoy v. Hoffmeister, 435 So. 2d 989, 990 (Fla. 5th DCA 1983). This liberal treatment of counter-affidavits should lead to an opportunity to correct the affidavit where a summary judgment has been granted on the technical insufficiency of the affidavit. United Auto. Ins. Co. v. Peter F. Merkle, M.D., P.A., 32 So. 3d 159, 162 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D620a] (citing Verdino v. Charcoal Pit, Inc., 898 So. 2d 246 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D746a]). See, e.g., Stephens v. Dictenmueller, 216 So.2d 448, 450 (Fla. 1968) (holding that a party should have been afforded at least one opportunity to amend or supplement the expert affidavit to correct technical deficiencies of failure to show affiant competent to opine and vagueness of affidavit). “Great caution should be exercised in any summary judgment proceedings not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial.” Stephens, 216 So. 2d at 450.
Consequently, the lower court also erroneously rejected Dr. Krimshtein’s affidavit on the ground that it was technically or legally insufficient. Considering the facts in the light most favorable to UAIC and drawing all reasonable inferences against NMTC, this Court finds that Dr. Krimshtein’s affidavit and attached peer review report sufficiently raise doubt as to the existence of issues of fact. Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (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. In his affidavit and peer review report, Dr. Krimshtein opined that, based on his review of the available treatment records, certain treatment is not RRN because such treatment was duplicative or unsubstantiated. The attached peer review report further details the bases for his opinion. Under these circumstances, UAIC should not be denied the right to trial based upon technical deficiencies because the affidavit and peer review report raise doubt as to the existence of issues of fact.
Notwithstanding, pursuant to the “tipsy coachman rule,” NMTC urges that this Court affirm the trial court based on UAIC’s technical admission as to RRN.5 However, Florida Civil Rule of Procedure 1.370(b)6 contains a liberal standard that favors amendment in most cases. Ramos v. Growing Together, Inc., 672 So. 2d 103, 104 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D991b]. Fourth District case law has adopted the position that rule 1.370(b) requires a written or ore tenus motion. In re Forfeiture of 1982 Ford Mustang, Vehicle ID No. ABP16F6CF190433, 725 So. 2d 382, 384 (Fla. 2d DCA 1998); see Singer v. Nationwide Mut. Fire Ins. Co., 512 So. 2d 1125, 1126 (Fla. 4th DCA 1987) (holding that, where no rule 1.370(b) motion was made, trial court did not abuse its discretion in failing to grant relief). However, such a motion must be timely made before or at a summary judgment hearing. Compare Ramos, 672 So. 2d at 104 (holding that, where among other things, rule 1.370(b) motion timely filed before summary judgment hearing, court abused its discretion in failing to grant motion), and Istache v. Pierre, 876 So. 2d 1217, 1218-19 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1407a] (finding an abuse of discretion for failure to grant rule 1.370(b) motion, where motion was made at the beginning of trial) with Asset Mgmt. Consultants of Virginia, Inc., 913 So. 2d at 1180-81 (holding that, where rule 1.370(b) motion filed after summary judgment hearing, trial court did not abuse its discretion in failing to grant motion). In addition, a trial court should not use technically deemed admissions to support a final summary judgment when the record is replete with contradictory evidence. Sterling v. City of West Palm Beach, 595 So. 2d 284, 285 (Fla. 4th DCA 1992). Absent a showing of prejudice by the party who obtained the admission, a court should grant a rule 1.370(b) motion in the aforementioned circumstances. See, e.g., Thomas v. Chase Manhattan Bank, 875 So. 2d 758, 760 (finding that trial court abused its discretion in failing to grant rule 1.370(b) motion where affidavit in opposition to summary judgment clearly contradicted technical admissions and there was a failure to show prejudice within meaning of rule).
The lower court abused its discretion in failing to grant UAIC’s rule 1.370(b) motion. Having filed the motion before the summary judgment hearing and having orally renewed the motion at the hearing, UAIC timely moved for relief from the admissions. In addition, UAIC’s answer to the complaint and proposed answers to the request for admissions as well as the deposition of UAIC’s adjuster and Dr. Krimshtein’s affidavit and peer review report contradict the technical admissions. Moreover, NMTC did not establish prejudice.7 Therefore, summary judgment should be reversed. See, e.g., Ramos, 672 So. 2d at 104 (finding that trial court abused its discretion in failing to grant rule 1.370(b) motion where motion was timely filed and there was a failure to establish prejudice, and reversing summary judgment because the record showed disputed issues of fact).
Finally, the reversal of the underlying judgment mandates the reversal of the same regarding attorney’s fees and costs. Section 627.428, Florida Statutes predicates the award of attorney’s fees upon entry of judgment in favor of the insured. § 627.428(1), Fla. Stat. (2005). See Hart v. Bankers Fire & Cas. Ins. Co., 320 So.2d 485 (Fla. 4th DCA 1975) (explaining that the statute that provides for the award of attorney’s fees in suits between an insurer and an insured presupposes the entry of a judgment against the insurer). Accordingly, it is
ORDERED AND ADJUDGED that the Final Judgment in Favor of Plaintiff is hereby REVERSED and REMANDED. It is further
ORDERED AND ADJUDGED that the Final Judgment in Favor of Plaintiff regarding r Attorney’s Fees and Costs is hereby REVERSED.
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1UAIC’s responses to NMTC’s requests for admissions were due on April 8, 2005.
2While the record is void of a separate order denying UAIC’s motion for relief, the motion was effectively denied when the trial court granted summary judgment partly based on the technical admission.
3The order granting summary judgment reads as follows:
Granted. Peer review is conclusory and does meet the requirements of Chapter 627 or evidence code. It was obtained 4 yrs from notice of claim. The peer review does not state where he obtained a reasonable price and other reasons stated on the record.
(R. 622.) To facilitate its review of this action, this Court will construe the order as stating that the peer review “does [not] meet the requirements of Chapter 627 or evidence code.”
4Section 627.736(7)(a), Florida Statutes states that “insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician . . . stating that the treatment was not reasonable, related or necessary.” § 627.736(7)(a), Fla. Stat. (2005).
5See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999) [24 Fla. L. Weekly S71a] (explaining that under the rule a judgment could be upheld on a “right-for-wrong reason” basis).
6Rule 1.370(b) provides:
[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining an action or defense on the merits.
Fla. R. Civ. P. 1.370(b). See Melody Tours Inc. v. Granville Market Letter, Inc., 413 So. 2d 450, 451 (Fla. 5th DCA 1982) (explaining that given the 1973 amendment to rule 1.370(b), Farish v. Lum’s Inc., 267 So. 2d 325 (Fla. 1972), in which the Supreme Court held that noncompliance with rule 1.370 could not be excused “on a base allegation of inadvertence,” was of doubtful applicability as authority).
7NMTC did not state that it intended to rely on the technical admissions in its motions for summary judgment. NMTC did not proffer argument as to prejudice at the hearing. In its answer brief, NMTC stated that, in filing its motions for summary judgment, it relied on the deposition of UAIC’s adjuster, the affidavits of NMTC’s billing clerk and treating physician and supporting documents. (Answer Br. 6-7.)
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