24 Fla. L. Weekly Supp. 763a
Online Reference: FLWSUPP 2409SOTOInsurance — Personal injury protection — Coverage — Medical expenses — Necessary and related expenses — Where insurer conceded medical necessity and relatedness of MRI by making partial payment for services, did not assert lack of necessity or relatedness as affirmative defense, and stated in response to interrogatories that it is not disputing necessity or relatedness, MRI is deemed necessary and related
PAN AM DIAGNOSTICS SERVICES, INC. D/B/A WIDE OPEN MRI a/a/o Yarelys Sotolongo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-23192 COCE (50). August 9, 2016. Peter B. Skolnik, Judge.
ORDER
This cause having come before the Court on Plaintiff’s Motion for Summary Judgment regarding Defendant’s Ability to Contest Relatedness and Necessity dated 3/31/16, the Court having heard argument of the parties, and being otherwise advised in the premises it is hereby ORDERED AND ADJUDGED, as follows:
That Plaintiff’s Motion is hereby Granted. The instant MRI is deemed medically necessary and related.
The Plaintiff provided an MRI to the assignor on June 27, 2011. The Defendant, on or about September 21, 2011, issued an explanation of benefits and made a partial payment. The check for the partial payment indicated that payment was for “PIP benefits.” The instant insurance policy issued by the Defendant says that they “will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the injured person (a) medical benefits — eighty percent of all necessary expenses . . . incurred as a result of bodily injury caused by an accident arising out of the ownership, maintenance or use of a motor vehicle.” Florida Statute 627.736(1)(a) likewise provides that payments under a PIP policy are to be made for necessary medical expenses due to an automobile accident. It is axiomatic that Defendant’s payment, having been made pursuant to the terms of its own policy and Florida Statute 627.736 represents a determination by Defendant that the instant MR1 was medically necessary and related. The Plaintiff is not required to prove medical necessity and relatedness of services that Defendant has conceded and already paid.
There are no affirmative defenses, much less one, that alleges that the instant MRI was not medically necessary and related and that the prior payment of same was due some error such as fraud, mistake or misrepresentation. In order to challenge the medical necessity or relatedness of a previously paid service, under the facts and circumstances of this case, the burden is on the Defendant to assert a defense seeking a reversal of the prior payment and allege a legally cognizable basis for its change of position.
Florida Rule of Civil Procedure 1.110(d) provides that “a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense.” Florida Rule of Civil Procedure 1.140(b) provides that “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]” In Florida, it is well settled that if an affirmative defense is not pleaded it is considered waived. See e.g., Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a]; Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971) (“Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits.”).
In addition to there being no affirmative defenses the Defendant’s verified responses to Plaintiff’s interrogatories and the documents produced in discovery indicate that the Defendant is not disputing medical necessity and relatedness, to wit:
11. What information do you have indicating the treatment for which benefits are claimed is “not necessary”, “not reasonable” or “not related”, when did you obtained this information and did you inform Plaintiff and/or assignor in writing that you had this information.
Defendant’s response — “Defendant directs Plaintiff to documents responsive to Request for Production . . .” Nothing was produced by the Defendant that contested medical necessity or relatedness.
13. Please identify any and all investigations that you have performed on the assignor including but not limited to the dates and type of surveillance performed; the date and type of any computer background checks on the assignor such as an SIB; investigated the assignor=s claim history; and any other investigations that were conducted and give the complete details of the results of such investigations.
Defendant’s response — “. . . Defendant states None. . . .”
14. For each denied or withheld payment of claim listed above, state in detail the legal grounds and the factual basis upon which the claim was denied, including the exact wording of any opinion of any physicians, the exact wording of any policy provisions, or the exact wording of any statutory language or case law upon which you base your denial or withholding of payment.
Defendant’s response — only discusses reasonableness. Nothing is mentioned with respect to related and / or necessary.
The Defendant, having taken a sworn position that they are not contesting medical necessity and relatedness, may not now, when confronted with an adverse motion for summary judgment, contradict or disavow their prior sworn testimony merely in an effort to oppose the motion. See Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954) and Baker v. Airguide, 151 So.3d 38 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2272b]. Under the facts and circumstances of this case the Defendant is bound by its discovery responses and the Court will not permit the Defendant to change its position at this juncture.
While the Defendant argues that under FS 627.736(4)(b) they may dispute the relatedness and necessity of the instant service at any time they fail to appreciate that said statute must be read in conjunction with the rest of common law, as noted above, and any other relevant Florida Law including Florida Statute 626.9541. Florida Statute 626.9541(i)(3), requires an insurer to promptly notify the insured of a its denial or reduction, reads:
(e) “failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after the proof-of-loss statements have been completed.” Fla. Stat. 626.9541(i)(3)(e).
(f) “failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement” Fla. Stat. 626.9541(i)(3)(f).
“For Defendant to suggest, retroactively that some of the bills that it had already paid (and in effect, affirmed coverage for) are not now covered because they were unnecessary, would violate this provision of the bad faith statutes, and has been deemed an unfair trade practice by our legislature.” Glenn V. Quintana, D.C., P.A. a/a/o Melissa Evans v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 882a (County 11, 2012).
In addition the affidavit, of Dr. Don Morris, which was served by the Defendant on July 14, 2016, almost 5 years after making payment and almost 4.5 years after suit was filed, does not dispute that the instant MRI was related. Dr. Morris’ affidavit, taken as a whole, indicates that the instant MRI was related, to wit: “at least to some extent it may not have been related to this most recent accident.” Implied in the second part of said statement is that the instant MRI was related to the accident.
The Court seriously doubts that, but for the instant litigation, the Defendant would have inquired into the necessity or relatedness of the MRI it paid. The Defendant’s actions outlined above and taken in totality, in this case, violate the Defendant’s obligation of good faith and fair dealing. To put it simply such an action amounts to bad faith.
For the foregoing reasons, the Court holds that, as a matter of law on the circumstances of this case, the Defendant has already affirmed coverage, including relatedness and necessity.
