6 Fla. L. Weekly Supp. 24a
Attorney’s fees — Insurance — Personal injury protection — Insured who filed action against insurer for damages claiming that insurer failed to provide timely full payment of all treatments is entitled to attorney’s fees, because the bills were not timely paid — Although insurer paid the amount owed within 30 days of learning it had mistakenly assumed the doctor’s bill was for one treatment rather than two, ample evidence existed to allow insurer to make full payment of bill supplied by doctor with minimal inquiry where insured submitted physician’s medical report which clearly stated that insured had two distinct injuries with application for benefits — Remand for determination of reasonable amount of attorney’s fees that should be awarded for both trial and appellate phases of litigation
FARREN IVEY, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. 11th Judicial Circuit, in and for Dade County, Appellate Division. Case No. 97-314-AP. L.T. Case No. 95-3428 CC 25. Opinion filed September 11, 1998. On Appeal from the County Court, Edward Newman, Judge. Counsel: Roy D. Wasson, for appellant. Ross B. Gampel, for appellant. Rosemary B. Wilder, for appellee. Richard A. Sherman, for appellee. Frank S. Goldstein, for appellee.
Certiorari granted at 24 Fla. L. Weekly D390b
DCA decision quashed at 25 Fla. L. Weekly S1103a (“Accordingly, we quash the decision below [the district court opinion], and hold that Ms. Ivey is entitled to recover the attorney’s fees she incurred in the prosecution of the legal action.”)
(Before Sandy Karlan, Gill S. Freeman, Marc Schumacher, JJ.)
(Sandy Karlan, J.)
(PER CURIAM.) REVERSED AND REMANDED.
This cause is before the Court on Appellant/Farren Ivey (Ivey)’s timely filed appeal from the decision of the County Court dismissing an action for damages brought by the Appellant, against the Appellee, Allstate Insurance Company (Allstate), for personal injury protection (PIP) benefits and attorney’s fees.
For the reasons stated below, this court reverses the County Court decision and remands this case for further proceedings.
On December 13, 1994, Ivey was struck by an automobile being operated by an Allstate insured motorist, while Ivey was walking on the sidewalk. She was injured in her lower left leg and right shoulder. Ivey timely applied for PIP benefits by attorney’s letter dated February 17, 1995, which enclosed an application for benefits and the attending physician’s report with a bill reflecting electrical stimulation treatments totaling $710.00. The invoice did not specify whether the treatments were for one or two injuries, however, the physician’s report clearly stated that Ivey had two distinct injuries. On March 15, 1995, in response to a request by Allstate for additional information, Ivey provided the Health Insurance Claim Form (HICF).
In April 1995 the doctor received payment from Allstate based upon the assumption that the doctor had only treated Ivey for one injury or modality.1 Allstate apparently only reviewed the bill and not the physician’s report, and therefore, mistakeningly assumed that the doctor’s bill was for one modality rather than two, and that the charge was in excess of what was normally charged for one modality.2 The doctor received a PIP payment reduced by 80% from Allstate in the amount of $461.60, accompanied by an explanation of benefits form explaining how it arrived at the payment.
Ivey filed a cause of action in May 1995 against Allstate for damages claiming that Allstate did not timely provide full payment for all treatments as required.3 Although all treatments were listed, the doctor failed to itemize the bill detailing each treatment rendered.
It was not until November 1995, nine months after the original claim was filed that Allstate discovered its mistake during the deposition of the doctor. It realized that the doctor was in fact owed the additional $106.00 requested by Ivey. Prior to November, 1995, Allstate did not review the other documents submitted, nor did they contact the doctor regarding an explanation of his charge(s). The doctor confirmed that the bill should have itemized the number of treatments given to the appellant, but that the information was clearly stated on his medical reports. Immediately thereafter, Allstate made a second payment in the amount of $106.40 which was the amount owed for the two modalities. The only issue remaining at trial was the award of attorneys’ fees.
The trial court ruled that Allstate should be able to rely on the HICF submitted by Ivey to inform them of the cost of treatment. It further reasoned that the adjuster should not have to look beyond the HICF form, unless they were given notice of the error. The court, therefore, concluded that Allstate paid the amount owed the appellant within the statutory time period. This is so because they paid the balance within 30 days of learning of their mistake. The court also determined that, because Allstate paid within the statutorily required 30 days, there was no confession of judgment as argued by Ivey. Since the court held that there was no confession of judgment and there was timely payment, it also concluded that attorney’s fees should not be awarded to Ivey’s attorney. We do not agree with the trial court’s analysis.
The case law is clear that the burden is on the insurer to “investigate” and “authenticate” a claim within 30 days of receiving notice of the claim. Pacheco v. Fortune Insurance Co., 695 So.2d 394 (Fla. 3rd DCA 1997); Martinez v. Fortune Ins. Co., 684 So.2d 201 (Fla. 4th DCA 1996); Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974). In Pacheco the Court held that “there is no statutory provision that tolls the thirty-day period,…” If the Allstate adjuster had simply reviewed the medical bills and reports submitted by the doctor, or contacted the doctor’s office, it would have found that the doctor treated the Appellant for more than one modality. The trial court attempted to distinguish the Pacheco case by stating that the second payment made in November 1995 was timely. It overlooked the fact that in this instance all of the information was timely supplied by the doctor’s initial report.
Allstate admits that it would have settled the case had it been aware of the second modality. Although proceeding in good faith, Allstate was placed on notice of the second modality when it was given the medical reports of the doctor. Even so, the insurance company in relying on Obando v. Fortune Insurance Co., 563 So.2d 116 (Fla. 3rd DCA 1990), argues that this court should deny Ivey’s appeal because there were no outstanding bills to be paid. The facts in Obando are not analogous to those in this case. Obando concerned an attorney seeking fees where there were no unpaid medical bills at the time of filing of the complaint. (emphasis supplied) To the contrary, despite Allstate’s good faith argument, there were unpaid medical bills in existence in May, 1995.
We find that ample evidence existed to allow Allstate to make full payment of the bill supplied by the doctor with minimal inquiry. Since we find that the bills were not timely paid, Ivey is entitled to attorney’s fees pursuant to Florida Statute Section 627.736(4) (1993). Martinez at 201. It is unnecessary to reach the issue of confession of judgment.
We therefore reverse the trial court’s ruling, and remand for an evidentiary hearing, to determine the reasonable amount of attorney’s fees that should be awarded for both the trial and appellate phases of litigation.
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1A modality is a therapeutic method or agent, such as surgery, that involves the physical treatment of a disorder.
2Allstate determined that a reasonable charge for a unit of electrical stimulation was $36.00, not the $55.00 charged by the doctor.
3Appellant has waived her right to the statutory interest on the unpaid claim.
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