20 Fla. L. Weekly Supp. 1127b
Online Reference: FLWSUPP 2012FLOYInsurance — Personal injury protection — Affirmative defenses — Failure of medical provider to comply with chiropractic record keeping requirements is valid ground to support affirmative defense that medical treatment was unlawfully rendered — Summary judgment — Error to enter summary judgment in favor of provider on issue of reasonableness, relatedness and necessity of treatment where supporting affidavits were legally deficient and deposition excerpts incorporated in motion for summary judgment did not conclusively show absence of genuine issue of material fact
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ATLANTIC MEDICAL SPECIALTY, INC., A/A/O MANUEL F. FLOYD, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-010 AP. L.T. Case No. 09-01233 CC 05. August 29, 2013. On appeal from a final judgment of the County Court in and for Miami-Dade County, Gladys Perez, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Kelly M. Arias, The Arias Law Group, P.A., for Appellee.
(Before BLAKE, LOPEZ, and DIAZ, JJ.)
(PER CURIAM.) The Appellant, United Automobile Insurance Company (“United Auto”) appeals a final judgment for medical benefits rendered in favor of the Appellee, Atlantic Medical Specialty, Inc. (“Atlantic”). We have jurisdiction. See § 26.012(1), Fla. Stat. (2013). We reverse.I. Factual and Procedural Background
The insured, Manuel Floyd (“the insured”), had an automobile accident on November 19, 2007. At the time of the accident, the insured had an automobile insurance policy with United Auto providing for personal injury protection (“PIP”) benefits. As a consequence of the accident, the insured sustained injuries and sought medical treatment from Atlantic. The insured assigned its benefits and policy rights to Atlantic. As the assignee, Atlantic made a demand for payment to United Auto for medical treatment or services provided to the insured. Upon United Auto’s failure to pay, Atlantic filed suit. In its answer to the complaint, United Auto asserted the affirmative defense that the medical treatment was not lawfully rendered as Atlantic failed to comply with chiropractic record keeping statutory requirements.
Subsequently, Atlantic filed its motion for summary judgment as to record keeping asserting that United Auto’s defense had no legal basis. The court granted Atlantic’s motion. Thereafter, Atlantic filed a second motion for summary judgment as to the issue of reasonableness, relatedness, and medical necessity (“RRN”). The court granted Atlantic’s motion as to RRN and entered the final judgment. This appeal timely followed.II. Standard of review
The appellate court reviews questions involving the interpretation of a statute de novo. Brown v. City of Vero Beach, 64 So. 3d 172 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1380a]. The same standard applies to the appellate review of a summary judgment. Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D1893a]. In reviewing a summary judgment, the court determines: (1) “whether there are genuine issues of material fact” and (2) “whether the trial court properly applied the correct rule of law.” Futch, 988 So. 2d at 690.III. Discussion
Summary judgment on record keeping
We find that the affirmative defense, that the medical treatment was unlawfully rendered, was a valid affirmative defense as it was asserted under section 627.736(5)(b)(1)(b), Florida Statutes (2007). We further find that failure to comply with chiropractic record keeping requirements is a valid legal ground to support such defense. See 627.732(11), Fla. Stat. (2007); 460.413(1)(m), Fla. Stat. (2012); Fla. Admin. Code R. 64B2-17.0065(2)(3). As such, the striking of the defense was erroneous. While the defense was inartfully drafted, United Auto has a right to question proper record keeping as an issue of fact.
Summary judgment on RRN
The affidavits filed below in support of Atlantic’s motion were legally deficient as they failed to comply with the statutory requirements prescribed by section 117.05(4)(f)(5), Florida Statutes (2012). Additionally, the excerpts of the deposition incorporated into Atlantic’s motion for summary judgment, do not rise to the level of conclusively showing the absence of genuine issues of material facts as to RRN. As such, we find that summary judgment was entered in error as Atlantic failed to meet its initial burden of proof which was to conclusively show the absence of genuine issues of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1996); Moore v. Morris, 475 So. 2d 666 (Fla. 1985).IV. Conclusion
Based on the foregoing, this matter is REVERSED and REMANDED for further proceedings consistent with this opinion. Atlantic’s motion for appellate attorney’s fees is hereby DENIED. See § 627.428(1), Fla. Stat. (2012).
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