7 Fla. L. Weekly Supp. 466a
Insurance — Personal injury protection — PIP insurer is not prevented from defending claim for benefits on merits because it obtained written report from a reviewing physician 40 days after receiving notice of medical provider’s claim, rather than 30 days after — 30-day provision in Section 627.736(4) determines when interest accrues, not when an insurer loses any right to deny payment for unnecessary and unrelated testing — Medical provider’s motions for summary judgment denied — PIP insurer entitled to attorney’s fees and costs
U.S.A. DIAGNOSTICS, INC. As assignee for RICHARD BRYSON, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County, Division 65. Case No. SP00-1398. April 10, 2000. Peggy E. Ready, Judge. Counsel: Stacey A. Giulianti, Zebersky & Giulianti, P.A., Plantation, for Plaintiff. Raymond L. Roebuck and Raymond M. Ravis, Taylor, Day & Currie, Jacksonville, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This Cause came on for hearing on Plaintiff’s Motion for Summary Judgment and Defendant’s Motion for Attorney Fees and Costs, and the Court having considered the Plaintiff’s Motion, Affidavits, Depositions, the case law and argument of counsel and being otherwise fully advised finds:
FACTUAL BACKGROUND
This Personal Injury Protection (PIP) insurance benefits dispute arises from State Farm’s denial of a bill submitted by this Plaintiff for spinal ultrasound testing performed on Richard Bryson, a State Farm insured, on December 15, 1998, and on January 14, 1999, State Farm notified the Plaintiff that the disputed treatment would be forwarded to an independent medical consultant for review. On or about February 5, 1999, State Farm received the results of an independent medical review of the above-referenced treatment and on February 9, 1999, State Farm notified the Plaintiff that the diagnostic testing was found to be unnecessary with regard to Richard Bryson’s medical treatment.
THE LAW
Plaintiff argued that it is entitled to a summary judgment because Defendant received the independent medical consultant’s report finding the disputed test unnecessary more than 30 days after Defendant received Plaintiff’s bill and cites §627.736(4) Florida Statutes. Plaintiff argued that this Court should follow the Third District Court of Appeal’s decision in Perez v. State Farm Fire and Casualty Company, 746 So.2d 1123 (Fla. 3rd DCA 1999). The Plaintiff’s Motion and supporting Memorandum, however, conspicuously failed to bring to this Court’s attention the case of Jones v. State Farm Mutual Automobile Insurance Company, 694 So.2d 165 (Fla. 5th DCA 1997), which is dispositive of the issues before this Court, binding within the Seventh Judicial Circuit, and in direct contradiction of the Plaintiff’s argument.
In Jones, supra, the court was asked to determine, among other issues, whether a PIP insurer is barred from contesting a claim for benefits where it does not have “reasonable proof” to question the relatedness of medical treatment within 30 days of receiving the bill. 694 So.2d at 166. In holding that State Farm was not stripped of its right to contest the claim on its merits, the court found that because State Farm had not obtained “reasonable proof” to support its denial of payment within 30 days, “State Farm is exposed to the statutory penalties attendant to an overdue claim. State Farm does not, however, lose its right to contest the claim.” Id. (emphasis added) Thus, in Jones, the Fifth DCA held that failure to obtain “reasonable proof” within 30 days does not affect an insurer’s right to contest the claim on its merits.
Without even mentioning or attempting to distinguish Jones, the Plaintiff asks this Court to follow the Plaintiff’s interpretation of “the holdings of the First, Third and Fourth DCAs,” with regard to Plaintiff’s Motion. An examination of the relevant case law in the Fourth DCA, however, further supports the Defendant’s position in this case.
Specifically, in Fortune Insurance Company v. Everglades Diagnostics, Inc., 721 So.2d 384, 385 (Fla. 4th DCA 1998), the Fourth DCA interpreted Section 627.736(4), Florida Statutes, the portion of the PIP statute relevant to the issue before this Court. In doing so, the court found that section “merely make[s] the PIP insurer liable for interest on such claims if payment is not made within 30 days from the notice” and does not take away in insurer’s rights under the policy where 30 days have elapsed from the date notice of a claim is provided. Id. Based on its reading of the statute, the court held that “appropriately read, the function of the statute is to define when interest begins to accrue on unpaid PIP benefits.” Id. Notably, the Everglades case was not cited by the Plaintiff in support of its motion in this matter.
Even the case of Amador v. United Automobile Insurance Co., 748 So.2d 307 (Fla. 3d DCA 1999), the most recent Third DCA case to address this issue, supports the Defendant’s position herein. In Amador, the court interpreted the PIP statute and held “if the insurer does not pay by the statutory 30-day period, on the 31st day, the insurer is itself in violation of the PIP statute and the insured is free to initiate a lawsuit to have the case determined on the merits.” 748 So.2d 308. Thus, the Amador case suggests that disputed medical testing does not automatically become necessary or related simply because the insurer is unable to obtain a medical report within 30 days. Rather, the insurer is still allowed to defend itself on the merits.
CONCLUSION
The Jones decision is directly applicable to the issues before this Court and provides binding authority requiring that Plaintiff’s Motion for Summary Judgment be denied. State Farm is not prevented from defending itself in this action because it obtained a written report from a reviewing physician, as stated by the Plaintiff, 40 days after receiving notice of the Plaintiff’s claim, rather than 30 days after. As interpreted by the Fifth DCA, as well as other District Courts in Florida, the 30-day provision in Section 627.736(4), Florida Statutes, determines when interest accrues, not when an insurer loses any right to deny payment for unnecessary and unrelated testing. It is therefore,
ORDERED and ADJUDGED
1. Plaintiff’s Motion for Summary Judgment is denied.
2. Defendant is entitled to attorney’s fees and costs resulting from Plaintiff’s Motion for Summary Judgment. The Court retains jurisdiction to determine the amount.
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