24 Fla. L. Weekly Supp. 472a
Online Reference: FLWSUPP 2407BURGInsurance — Personal injury protection — Demand letter — Trial court did not err in finding that substantial compliance with demand letter requirement satisfied PIP statute — Coverage — Medical expenses — Error to enter summary judgment in favor of medical provider where there are genuine issues of material fact regarding reasonableness of charges — Trial court erred in concluding that insurer waived right to contest relatedness and medical necessity of services by failing to plead lack of relatedness and necessity as affirmative defense or contest those issues in handling of claim — Small claims rules do not require filing of answer or affirmative defenses, and section 627.736(4)(b) allows insurer to contest reasonableness, relatedness or necessity at any time
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. BRUCE CHIROPRACTIC & COMPREHENSIVE CARE, PLLC., a/a/o David Burget, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Marion County. Case No. 2015-AP-0031. L.T. Case No. 2013-SC-2219. August 19, 2016. Appeal from the County Court For Marion County. Robert E. Landt, Judge. Counsel: Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Appellant. Robert J. Crohan, Todd E. Copeland & Associates, P.A., Orlando, for Appellee.
OPINION
(SEMENTO, J.) Bruce Chiropractic & Comprehensive Care, PLLC., the Appellee, treated David 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 both parties moved for summary judgment and those motions were set for a hearing.1 Each party filed affidavits in support of their motion and in opposition to the other party’s motion. The trial court denied State Farm’s motion for summary judgment and granted Bruce Chiropractic’s motion for summary judgment. This appeal ensued.
The first issue involves State Farm’s appeal of the order denying its motion for summary judgment. State Farm moved for summary judgment on the issue of Bruce Chiropractic’s defective pre-suit demand letter. State Farm argued that Bruce Chiropractic’s pre-suit demand notice was defective because it failed to comply with the strict requirements of section 627.736(10), Florida Statutes. Bruce Chiropractic asserted that it had substantially complied, and the trial court found that sufficient. We agree, and find no error in the trial court’s denial of the motion for summary judgment. We AFFIRM on that issue.
The second issue involves State Farm’s appeal of the order granting Bruce Chiropractic’s motion for summary judgment. It asserts that the trial court erred in granting summary judgment because there are triable issues of material facts in the case. We agree.
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 concerning the reasonableness of the charges, the court erred in granting summary judgment.
Bruce Chiropractic argued that it is entitled to summary judgment 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 Mr. Burget’s motor vehicle accident. Further, Bruce Chiropractic argues that State Farm did not plead lack of necessity and relatedness as affirmative defenses, that 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. In granting summary judgment, the trial court agreed. 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. Thus, State Farm did not waive its right to deny that payment was in error.
For the foregoing reasons, the order granting summary judgment in favor of Bruce Chiropractic 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 the significant issues in this appeal, its Motion to Tax Appellate Attorneys’ Fees and Costs is DENIED.
AFFIRMED in part; and REVERSED AND REMANDED. (FALVEY and HODGES, JJ., concur.)
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1This case is nearly identical to a previous case decided by our panel, Case No. 2014-AP-0028 [ 23 Fla. L. Weekly Supp. 890a]. The only significant differences are that this case was filed by the Plaintiff on behalf of David Buret, while the prior case involved Angela Burget. Also, in this case, both parties moved for summary judgment but in the prior case, State Farm moved for a continuance of the hearing because discovery was pending.
