6 Fla. L. Weekly Supp. 470a
Insurance — Personal injury protection — Error to enter summary judgment awarding disputed medical benefits to insured on ground that insurer failed to make payment or furnish reasonable proof supporting denial within thirty days of receipt of bill — Whether treatment was medically necessary is element for insurer to prove at trial — Although failure to pay benefits or furnish reasonable proof to support denial within thirty days may subject insurer to attorney’s fees and interest, statute does not create any greater penalty — Remand with instructions that case be set for trial
ALLSTATE INSURANCE COMPANY, Appellant, vs. CHRISTOPHER COFINO, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Appeal No. 98-295 AP. Case No. 97-1441 SP 24. Opinion filed May 7, 1999. Appeal from a Final Judgment of the County Court, Judge Beth Bloom. Counsel: Jacqueline G. Emanuel, of Riley, Knoerr & Emanuel, attorneys for the appellant. Michael G. Gongora, of Confino & Associates, attorney for appellee.
(Before STEVEN D. ROBINSON, CINDY S. LEDERMAN, and PEDRO G. ECHARTE, JJ.)
(STEVEN D. ROBINSON, Judge.) Appellee, PEDRO CONFINO was involved in an auto accident for which he received medical treatment. Appellant, ALLSTATE INSURANCE COMPANY, insured him with personal injury protection (PIP). One $2,100 item in his claim, nerve conduction studies performed by Diagnostic/Neuro Testing, Inc. is at issue in this case. Forty six days after the testing Cofino submitted this bill to Allstate. In turn, Allstate sent the claim for an independent review by MTC Testing, Inc. On July 26th the thirty day period for an insurer to respond to an insured on a claim expired. Section 627.739(4)(b), Florida Statutes. The independent review was not completed until September 12th, when MTC Testing, Inc. issued a report finding the nerve testing not medically necessary. Thereupon Diagnostic/Neuro Testing, Inc. received notice from Allstate that payment for the testing had been denied. Cofino then filed suit for breach of contract alleging violation of the PIP statute just cited. The County Court entered an amended Final Summary Judgment for 80% of the disputed amount or $1,680, which Allstate is appealing.
Florida Statutes 627.736(1) and (4) state in relevant parts,
(1)(a) Medical benefits — Eighty percent of all reasonable expenses for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and necessary ambulance, hospital, and nursing services.
(4)(a) Benefits, when due. — Benefits due from an insured under ss 627.730-627.7405 shall be primary. . . and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss, and the amount of expenses and loss incurred which are covered by the policy.
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished with a written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid with 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer.
The trial court apparently interpreted this statute to require say that payment be made within thirty days or the reasonable proof for denial be furnished within that same time period. The statute’s language does not support this conclusion. It uses the word “overdue” and is subject to not being overdue “when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, . . .” We interpret the statute to allow the required reasonable proof to be an element for the defendant to prove at trial. Therefore summary judgment was not proper.
The closest cases cited by both parties hold that undisputed medical bills which are not paid on time subject insurers to attorneys fees and interest, not the liability effectuated here. None hold that the claim itself be disallowed when it is filed late. E.g. Fortune Insurance Company v. Pacheco, 695 So.2d 394 (Fla. 3rd DCA 1997); Crooks v. State Farm Mutual Automobile Insurance Company, 659 So.2d 1266 (Fla. 3rd DCA 1995); Jones v. State Farm Mutual Automobile Insurance Company, 694 So.2d 165 (Fla. 5th DCA 1997); Martinez v. Fortune Insurance Company, 684 So.2d 201 (Fla. 4th DCA 1996), Dunmore v. Interstate Fire Insurance Company, 301 So.2d 502 (Fla. 1st DCA 1974).
“[T]he function of the statute is to define when interest begins to accrue on unpaid PIP benefits.” Everglades Insurance Company v. Everglades Diagnostics, Inc., 721 So. 2d 384 (Fla. 4 DCA 1998). In the context of an insurer wanting arbitration after the thirty day period had expired, Everglades held that section 627.736 did not preclude arbitration when demanded after the thirty days.
Without any more definitive appellate guidance on this issue, we do not read this statute as creating any greater penalty for the insurance company than interest and fees. Therefore, we reverse the judgment of the trial court and remand, directing that the trial court vacate its Amended Final Summary Judgment and set this matter for trial to decide if Allstate’s denial of the claim was medically reasonable.
REVERSED AND REMANDED. (LEDERMAN AND ECHARTE, JJ., Concur.)
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