23 Fla. L. Weekly Supp. 643a
Online Reference: FLWSUPP 2306MENDInsurance — Personal injury protection — Affirmative defenses — Abandonment — Insurer abandoned affirmative defense alleging that certain services were not medically necessary where litigation adjuster stated in sworn interrogatory that insurer was not making claim that services were unnecessary, and insurer admitted in response to admissions that services were related and medically necessary — Insurer’s responses to request for admissions conclusively establish relatedness and medical necessity of services — Further, affidavit filed by insurer is legally insufficient to create question of fact as to necessity of services where affidavit attempts to repudiate insurer’s prior sworn position on that issue
UNIVERSAL X-RAY CORP (a/a/o Yordanys Fernandez Mendoza), vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-009184 COWE (81). September 8, 2015. Honorable Jane D. Fishman, Judge. Counsel: Emilio Roland Stillo, for Plaintiff. Douglas G. Brehm, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court August 29, 2015, on Plaintiff’s Motion for Partial Summary Judgment, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. The Plaintiff rendered services to the Defendant’s insured on April 15, 2011. Plaintiff filed suit over underpaid PIP benefits on Septmber 5, 2013. On November 27, 2013, the Defendant filed its Answer and Affirmative Defenses raising two affirmative defenses: 1) Allstate’s application of the fee schedule found in § 627.736(5)(a)(2)(a-f) did not breach the policy because the policy at issue expressly elects reimbursement based on the fee schedule limitations authorized by the Florida PIP statute and 2) Plaintiff billed for unnecessary services for which Allstate made no payment.
Plaintiff contends the Defendant has abandoned the second affirmative defense during the pendency of the litigation. During the litigation Plaintiff sent numerous discovery requests to the Defendant in an attempt to obtain discovery as to Defendant’s contention that the services rendered were not medically necessary. For example, the following are excerpts from the Defendant’s Interrogatory responses which were verified on April 11, 2014:
5. Please state the name and address of all adjusters/supervisors ever in charge of payments, decision making and control of the PIP claim file of the Plaintiff, and the names, addresses and the position of each person who has ever worked on the file of the claim of the Plaintiff.
ANSWER: There is no dispute regarding the applicable policy of insurance, the claims for medical services for the dates of services at issue or that such services were covered, or regarding the payments mdae. Rather, this lawsuit presents the purely legal question of whether the payments made pursuant to the fee schedule referenced in Fla. Stat. § 627.736(5) and Allstate’s automobile insurance policy fulfilled Allstate’s obligations under the policy and Florida law.
10. Please specifically state how the treatment and/or diagnostic testing received by the patient was not medically necessary? In response to this interrogatory please list the medical care provider along with a brief explanation describing how the treatment and/or diagnostic testing was not medically necessary?
ANSWER : Allstate does not make this claim.
Further, on April 2, 2014, in response to Plaintiff’s request for Admissions Allstate admitted that the services provided by the Plaintiff were related to the automobile accident and medically necessary. Allstate also filed numerous other discovery responses asserting the position that the lawsuit concerned solely a “legal issue”.
Plaintiff contends the Defendant abandoned a claim that the services were not medically necessary through the verified interrogatories of Allstate’s litigation adjuster with the most knowledge and the numerous discovery responses filed by counsel which affirmed Allstate’s position including the admission responses.
On August 26, 2015, the Defendant filed the affidavit of Denisha M. Torres-Lich contending there is inadequate documentation to support the billing of the services which Defendant contended at one time were not medically necessary.
At the hearing of August 28, 2015, the Defendant offered no credible explanation for the responses. Counsel for the Defendant characterized the sworn interrogatory answers and other various discovery responses filed by the Defendant as simply “inappropiate”.
Conclusions of Law Defendant abandoned their second affirmative defense that certain services were unecessary during the pendency of the litgation. An insurer can abandon affirmative defenses through sworn testimony which is affirmed by counsel. NDNC Neurological Treatment Centers Inc. (a/a/o Roderick Rolle) v. United Automobile Insurance Company, 19 Fla. L. Weekly Supp. 138b (Broward County Court, 2011, Honorable Sharon L. Zeller) citing Metropolitan Dade County v. Yearby, 580 So.2d 186 (Fla.3rd DCA 1991) for the proposition that “a party is necessarily bound by any relevant admission which either he or his agent makes”. In the NDNC case, United Auto’s adjuster stated in deposition they were not going to rely on the pled affirmative defense of material misrepresentation. The statement was affirmed by United’s counsel. After the deposition United Auto again tried to raise the material misrepresentation defense. Judge Zeller found same was abandoned. Allstate, through counsel and the sworn interrogatory responses of their litigation adjuster with the most knowledge, has similarly abandoned their defense in the instant case.
Plaintiff also contends the relatedness and medical necessity of the services are established through Defendant’s responses to Plaintiff’s request for admissions. Under Florida Rules of Civil Procedure 1.370(b), any matter admitted under this rule is conclusively established. In Lutsch v. Smith, 397 So. 2d 337 (Fla. 1st DCA 1981), the Court held “as between the parties an admission in a pleading is accepted as a fact without the need of supporting evidence”. The Plaintiff has also cited Affiliated Healthcare Centers Inc. (Claudia Witkowski) v. United Automobile Insurance Company, 17 Fla. L. Weekly Supp. 122a (Miami-Dade County, 2009, Judge Bronwyn C. Miller) as support for the use of admissions at a summary judgment hearing. In the Affiliated case as in the instant case the Defendant did not seek to amend their admissions responses prior to hearing on Plaintiff’s Motion for Summary Judgment. In the instant case, related and medical necessity have been admitted by the Defendant. The Court finds they are conclusively established as a matter of law.
Plaintiff also contends that the Defendant’s affidavit is legally insufficient to create a question of fact as it inconsistent with the Defendant’s prior sworn interrogatory responses. In Slominski v. Citizens Propety Insurance Corporation, 99 So. 3d 973 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2339a] the Court held a party may not file his own affidavit baldly repudiating prior testimony to avoid entry of a summary judgment. This Court finds the affidavit of Denisha M. Torres-Lich legally insufficient to create a question of fact as it attempts to repudiate the Defendant’s prior position made under oath.
The Defendant at their own peril choose to defend this case for almost two years solely as a “legal issue” and cannot now complain that a binding ruling on that legal issue has caused them to revisit abandoned defenses. Orthopedic Specialists (a/a/o Kelli Serridge) v. Allstate Insurance Company (Fla. 4th DCA, August 19, 2015) [40 Fla. L. Weekly D1918a].
ORDERED and ADJUUDGED that Plaintiff’s Motion for Partial Summary Judgment is granted as to relatedness and medical necessity for CPT Code 90092. The only remaining issue to be resolved is the “legal issue” of whether Defendant’s PIP insurance policy is legally sufficient to authorize the Defendant to apply the reimbursement limitations set forth in Florida Statutes § 627.736 (5)(a)2.
