23 Fla. L. Weekly Supp. 890a
Online Reference: FLWSUPP 2309BURGNOT FINAL VERSION OF OPINION
Subsequent Changes at 24 Fla. L. Weekly Supp. 197bInsurance — Personal injury protection — Small claims — Summary disposition — Error to enter summary disposition in favor of medical provider where relevant discovery was pending, and there were genuine issues of material fact in dispute — Trial court erred in determining that insurer had waived right to contest medical necessity or relatedness of services by making partial payment of bills and failing to plead issues in its affirmative defenses — PIP statute allows insurer to raise issues at any time, and small claims rules do not require filing of answer
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. BRUCE CHIROPRACTIC & COMPREHENSIVE CARE, PLLC., a/a/o Angela Burget, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Marion County. Case No. 2014-AP-28. L.C. Case No. 2013-SC-2359. March 7, 2016. Appeal from the County Court Marion County. Honorable Robert Landt, Judge. Counsel: Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Appellant. Todd E. Copeland, Todd E. Copeland & Associates, P.A., Orlando, for Appellee.
REHEARING DENIED. 24 Fla. L. Weekly Supp. 197b. (4-16-2016)OPINION
(SEMENTO, L., Judge.) Bruce Chiropractic & Comprehensive Care, PLLC., the Appellee, treated Angela Burget for injuries resulting from an automobile accident. Bruce Chiropractic billed Burget’s insurer, State Farm Mutual Insurance Company, the Appellant. Instead of paying the full amount billed, State Farm paid a lesser amount, and issued an “Explanation(s) of Review” requesting additional documentation “substantiating necessity and relating the services to the motor vehicle accident.” Bruce Chiropractic filed suit and eventually moved for summary disposition pursuant to Rule 7.135, Florida Small Claims Rules, and the matter was set for a hearing. Each party filed affidavits, and State Farm moved for a continuance of the hearing to allow it to complete discovery. The trial court denied the motion for a continuance, and entered a summary disposition in Bruce Chiropractic’s favor. This appeal ensued.
State Farm asserts that the trial court erred in granting summary disposition because there are triable issues of material facts in the case, and that the court erred in denying the motion to continue where discovery was not complete. We agree.
Although a trial court has discretion as to whether to grant a continuance, it is error to enter summary judgment where relevant discovery is pending. Arguelles v. City of Orlando, 855 So. 2d 1202, 1203 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2342a]. Here, the record indicates that State Farm had relevant discovery pending at the time of the summary disposition hearing. Further, there are no findings by the court that the discovery requests were initiated so as to thwart the summary disposition hearing. Harper v. Wal-Mart Stores E., L.P., 134 So. 3d 557, 558 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D556a]. Thus, the trial court erred in entering summary disposition.
Summary judgment cannot be granted if there are genuine issues of material fact. Hulley v. Cape Kennedy Leasing Corporation, 376 So. 2d 884, 885 (Fla. 5th DCA 1979). Here, the record indicates that there are genuine issues of material fact in dispute. Despite that, it appears that the trial court weighed the evidence presented in the competing affidavits and made a determination as to the reasonableness of the charges provided by Bruce Chiropractic. Since there are genuine issues of material fact, the court erred in granting summary disposition.
Bruce Chiropractic argues that it is entitled to summary disposition because State Farm cannot contest the medical necessity and causal relationship of the services provided; it asserts that by paying the bills, even at a reduced amount, State Farm agreed that the services were medically necessary and related to Ms. Burget’s motor vehicle accident. Further, Bruce Chiropractic argues that State Farm did not plead lack of necessity and relatedness as affirmative defenses, equitable principles prohibit State Farm from contesting these issues in litigation because it did not do so during the handling of the claim, and that State Farm may not effect a retroactive termination of benefits when it had previously affirmed coverage. The trial court seemed to agree; in addition to finding that Bruce Chiropractic’s charges were reasonable, the court also determined that State Farm had waived its right to deny payment based on section 627.736(4)(b), Florida Statutes. However, the court erred in reaching that decision.
This case proceeded under the small claims rules, which do not require the filing of an answer, although one was filed, or an affirmative defense, and the burden was on Bruce Chiropractic to prove the elements of its case. Further, a plain reading of the statute at issue shows that State Farm had a right to contest “at any time” that the claim was unrelated, not medically necessary, or that the charges were not reasonable. Section 627.736(4)(b), Florida Statutes. The court’s determination that State Farm had waived its right to deny payment is in error.
For the foregoing reasons, the Amended Order on Summary Disposition is REVERSED.
Bruce Chiropractic filed a Motion to Tax Appellate Attorneys’ Fees and Costs, and State Farm filed a Response. In Brass & Singer v. United Automobile Insurance Company, 944 So. 2d 252 (Fla. 2006) [31 Fla. L. Weekly S762a], the court held that under section 627.428, Florida Statutes, an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal. Thus, because Bruce Chiropractic did not prevail on this appeal, its Motion to Tax Appellate Attorneys’ Fees and Costs is DENIED.
REVERSED AND REMANDED. (FALVEY, C., J., and HODGES, R., J. concur.)
