25 Fla. L. Weekly Supp. 85a
Online Reference: FLWSUPP 2501PJOSInsurance — Personal injury protection — Coverage — Medical expenses — Related and necessary treatment — Where insurer did not provide written statement disputing relatedness or necessity of treatment prior to motion for summary judgment but, instead, made numerous admissions that treatment was related and necessary, treatment is deemed related and necessary and insurer is estopped from conducting discovery on those issues
HOMESTEAD CHIROPRACTIC CLINIC, INC. a/a/o Peticia Joseph, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-7616 SP 23 (03). March 3, 2017. Linda Singer Stein, Judge. Counsel: Vincent J. Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Russell Kolodziej, House Counsel of United Automobile Insurance Company, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDINGDEFENDANT’S ABILITY TO CONTESTRELATEDNESS AND NECESSITY
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 and Plaintiff’s Motion for Protective Order as to discovery regarding same, the Court having heard argument of the parties, and being otherwise advised, it is hereby ORDERED as follows:
That Plaintiff’s Motion is hereby Granted. The instant MRI is deemed medically necessary and related.Findings of Fact
The Plaintiff provided medical care to the assignor from January 27, 2012-May 8, 2012 and submitted the bills for payment to the Defendant. The Defendant upon receipt of the bills made a partial payment for all dates of service and issued an explanation of benefits.
The instant insurance policy says that the Defendant “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.” The Defendant’s Insurance policy and explanations of benefits, which were produced in discovery, were attached to Plaintiff’s motion. In addition, the Defendant, on December 13, 2016, filed with the Court a duplicate copy of the explanations of benefits and copies of nine separate checks issued for different dates of service indicating that payment is “for PIP benefits.” The explanations of benefits do not raise or dispute that the instant treatment is not related and/or not necessary. The checks state that the payments were for “PIP benefits.”
During discovery the Defendant, by way of their discovery responses, did not dispute that the underlying treatment was related and necessary. On August 7, 2014 the Defendant stated in response to Plaintiff’s initial interrogatories:
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.
Answer: Defendant directs Plaintiff to documents responsive to Request for Production, which can be furnished upon Plaintiff in accordance with Rule 1.350 — Production of Documents and Things in one of three (3) ways: a) via encrypted email, b) via U.S. Mail upon receipt of payment of the copying costs or c) said documents will be made available for inspection at the Office of the General Counsel at a mutually convenient date and time. Specifically, Explanation of Benefits documents.
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.
Answer: Objection. As an adjuster, I am not qualified to provide testimony as to the legalities of an issue. I am, however, qualified to provide testimony as to the facts surround the claim at issue. Without waiving said objections, Defendant states reasonableness is based upon the corporate representative as to reasonableness’ review of the claims file, their review of the medical bill(s) submitted by Plaintiff to United Automobile Insurance Company and their background, training and experience receiving, analyzing, adjusting and determining reimbursement dollar amounts for PIP claims in South Florida, including the jurisdiction of this Honorable Court, coupled with their knowledge of reimbursement levels in the community and their knowledge of Medicare reimbursement fee schedules, Workman’s Compensation reimbursement fee schedules and the various federal and state medical fee schedules applicable to automobile and other insurance coverages.
On June 25, 2013 the Defendant provided the below responses to request for admissions:
10. That some of the medical treatment that was administered to the assignor by Plaintiff was related to the diagnosis and/or treatment of the injuries assignor sustained in the automobile accident as referenced in the Complaint.
Unknown whether there was an assignment, whether medical treatment was administered, whether there was an accident, whether there were injuries or whether any treatment rendered was related.
11. That some of the medical treatment that was administered to the assignor by Plaintiff was necessary to the diagnosis and/or treatment of the injuries assignor sustained in the automobile accident as referenced in the Complaint.
Unknown whether there was an assignment, whether medical treatment was administered, whether there was an accident, whether there were injuries or whether any treatment rendered was related.
In addition, and during the hearing on the instant motion, the Defendant stated that the previously made payments were not gratuitous.Findings of Law
The evidence, including discovery responses, explanations of benefits, issued checks and admissions show that the Defendant has taken a position that the instant treatment is related and necessary. First, the Defendant’s own explanations of benefits indicate that the bills were processed in accordance with the instant policy and Florida Statute 627.736 and the checks used to pay the Plaintiff clearly state the payment is for “PIP benefits.” Based on the Defendant’s insurance policy and Florida Statute 627.736(1)(a) payment for “PIP benefits” are made only for necessary medical expenses related to an automobile accident. Defendant’s payments, having been made pursuant to the terms of its own policy and Florida Statute 627.736 represent a determination and admission by the Defendant that the instant services were medically necessary and related. Second, the Defendant in response to specific discovery requests failed to assert that the treatment was not related or not necessary.1 When the Defendant admitted, as they did here, that the underlying payments were not gratuitous the only reasonable inference that can be drawn is that the payments were made in accordance with the terms and conditions of the instant policy and Florida Law and they are therefore, related and necessary.
The Defendant, having admitted that the underlying treatment is related and necessary, may not now, when confronted with an adverse motion for summary judgment, contradict or disavow their prior admissions merely in an effort to oppose the motion. See Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954), Baker v. Airguide, 151 So.3d 38 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2272b] and Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069, 1070 (Fla. Dist. Ct. App. 1977) (“A party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”) . The Defendant has not produced any proof which would demonstrate a basis to retreat from their earlier position on related and necessity. Under the facts and circumstances of this case, the Defendant is bound by the positions it has taken.
Florida Statute 627.736(4)(b) must be read in conjunction with 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 denial or reduction:
(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).
Prior to the December 14, 2016 hearing on the instant motion, the Defendant did not provide a written statement setting forth that they were disputing related and necessity and the reasons for that dispute. Further, the Defendant has made numerous admissions that the instant treatment was related and necessary which have been relied upon by the Plaintiff over the four years since treatment occurred and over the two years that this case has been in litigation.
For the foregoing reasons, the Court holds that, as a matter of law on the circumstances of this case, the underlying treatment is deemed related and necessary and the Defendant is estopped from conducting any discovery with respect to same.
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1The comment to Rule of Civil Procedure 1.510, in discussing interrogatories, states that interrogatories are a stronger form of evidence than affidavits, can be used as evidence in a summary judgment hearing and that “the answer to an interrogatory . . . is an admission of an adverse party.”)
