7 Fla. L. Weekly Supp. 49a
Insurance — Personal injury protection — Insurer remains liable for medical bills from heath care provider that were received prior to first scheduled independent medical examination where insurer failed to either pay medical bills at full 80% pursuant to terms of policy and section 627.736, Florida Statutes, or establish that it had reasonable proof that it was not responsible for payment of these medical bills — Insured entitled to partial summary judgment on these bills — Court reserves jurisdiction to determine whether insurer is liable for all medical bills received prior to second IME based upon jury’s determination of whether insured reasonably refused to attend scheduled IME — Issue of whether insured unreasonably refused to attend scheduled IMEs is question of fact for jury — If jury finds that insured’s failure to attend scheduled IMEs was not unreasonable, court reserves jurisdiction to determine whether insurer is liable of any and all medical bills that it received on behalf of insured, where defendant failed to obtain report from physician in same licensing chapter as treating physician in order to establish that it was not responsible for payment of any medical or diagnostic bills — Attorney’s fees — Plaintiff entitled to prevailing party attorney’s fees and costs and court reserves jurisdiction to determine amount of reasonable fees and costs
ZOILA ROJAS, Plaintiff, vs. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court of the 11th Judicial Circuit in and for Miami-Dade County. Case No. 98-9454 CC 25(2). October 22, 1999. Edward Newman, Judge.
PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come to be heard on October 7, 1999 on Plaintiff’s ZOILA ROJAS’s, Motion for Partial Summary Judgment, the Court having heard argument of counsel, and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
FINDINGS OF FACT
1. The Defendant, OCEAN HARBOR CASUALTY INSURANCE COMPANY (“OCEAN HARBOR”) scheduled two Independent Medical Examinations (IME) through Premier Medical Review for the Plaintiff, ZOILA ROJAS (“ROJAS”) to attend. The first IME was scheduled for October 8, 1998 and the second IME was scheduled for October 23, 1998.
2. The first IME letter was sent certified mail by Premier which was returned to Premier because it was unclaimed by ROJAS. The second IME letter was sent certified mail by Premier to ROJAS Plaintiff as well as her attorneys, and the Plaintiff signed for the letter on October 23, 1998, which was the day of the second scheduled IME.
3. OCEAN HARBOR received a bill from 440 West Medical Center in the amount of $8,125.00 for dates of service 7/16/98 through 9/10/98 prior to the first scheduled IME on October 5, 1998.
4. OCEAN HARBOR received the following bills on the day of the first scheduled IME: Jose Ruiz, M.D., in the amount of $925.00 for dates of service 7/16/98 through 9/10/98 received on October 8, 1998, and Max Diagnostic in the amount of $5,660.00 for dates of service 7/16/98 through 9/28/98 received on October 8, 1998.
5. OCEAN HARBOR received a bill from Jose Munoz, M.D., in the amount of $350.00 for dates of service 10/7/98 prior to the second scheduled IME on October 20, 1998.
6. As of this date, none of the medical bills submitted on behalf of ROJAS and received by OCEAN HARBOR have been paid.
7. As of this date, OCEAN HARBOR has never requested that ROJAS attend another IME and has not sent any of the Plaintiff’s medical bills for a Peer Review.
CONCLUSIONS OF LAW
1. Pursuant to the subject policy of insurance, and Florida Statutes §627.736, the Defendant remains responsible for payment of 80% of the related, reasonable and necessary medical bills incurred as a result of the subject accident.
2. Pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus 10% interest.
3. The PIP statute requires the insurer of a motor vehicle to take some affirmative action within thirty days of receiving notice of the fact of an accident and receipt of any medical bill to establish that it is not responsible for payment of same. See Martinez v. Fortune Ins. Co., 684 So. 2d 201 (Fla. 4th DCA 1997); Crooks v. State Farm Mut. and Automobile Ins. Co., 659 So. 2d 1266 (Fla. 3rd DCA 1995), rev. dism. 662 So. 2d 933 (Fla. 1995); Fortune Ins. Co. v. Pacheco, 695 So.2d 394 (Fla. 3rd DCA 1997). This Court agrees with Crooks that the plain meaning and intent of § 627.736(4)(b) is to guarantee swift payment of PIP benefits. Further, this Court agrees with Pacheco that the burden is upon the insurer to authenticate the claim within the statutory time period, and that a unilateral determination that reasonable proof of claim had not been established could not be used to circumvent the obligation to pay within thirty days.
4. An insurer’s termination of PIP benefits without a written report by a physician in the same licensing chapter is ineffective. See United Automobile Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3rd DCA 1998); § 627.736(7)(a), Fla. Stat.
5. It is well-settled law in Florida that a claimant’s unreasonable refusal to attend a compulsory medical examination is a complete defense to an action for PIP benefits. See Allstate Ins. Co. v. Graham, 541 So. 2d 160 (Fla. 2nd DCA 1989); and U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3rd DCA 1997). This Court recognizes that the “benefit” the PIP statute refers to is the payment of medical bills and not medical treatment according to Silva. Thus, an insurer is not liable for medical bills received after an insured unreasonably refuses to attend an IME. Silva at 595-596.
6. In the instant case, it is undisputed that the Defendant did not pay the medical bills received prior to the first scheduled IME from 440 West Medical Center in the amount of $8,125.00 for dates of service 7/16/98 through 9/10/98 which were received on October 5, 1998. Further, it is undisputed that OCEAN HARBOR never paid these bills.
7. In the instant case, the Defendant did not establish that it had reasonable proof that it was not responsible for the payment of these medical bills within the required time period. Pursuant to § 627.736(4) and the above cited supporting case law, the Defendant had 30 days after receipt of the subject bills to either pay the PIP medical benefits or establish that it had reasonable proof that it was not responsible for payment of the bills. Because there does not exist any questions of material fact regarding the Defendant’s failure to pay the Plaintiff’s medical bills at full 80% pursuant to the terms of the policy and § 627.736, this Court must grant the Plaintiff’s Motion for Partial Summary Judgment on these bills. Thus, the defendant remains liable for medical bills from 440 West Medical Center in the amount of $8,125.00 at 80% ($6,500.00) plus 10% interest from the date the bill was received after applying any applicable deductible. See § 627.736(4); McNally v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 632 (Fla. 20th Judicial Cir., Collier County, May 14, 1998).
8. It is undisputed that the Defendant did not pay the medical bills which it received on the day of the first scheduled IME from Jose Ruiz, M.D., in the amount of $925.00 for dates of service 7/16/98 through 9/10/98, and Max Diagnostic in the amount of $5,660.00 for dates of service 7/16/98 through 9/28/98, and it did not pay the medical bills received prior to the second scheduled IME from Jose Munoz, M.D., in the amount of $350.00 for dates of service 10/7/98. This Court finds as a matter of law that the issue of whether ROJAS unreasonably refused to attend her IMEs scheduled for October 8, 1998 and October 23, 1998 is a question of fact for the jury. Therefore, the Court reserves jurisdiction to determine whether OCEAN HARBOR is liable for all medical bills received prior to the second IME on October 23, 1998 based upon the jury’s determination on whether ROJAS unreasonably refused to attend this IME. See Silva.
9. In addition, the Defendant failed to obtain a report from a physician in the same licensing chapter as the treating physician, Dr. Jose Ruiz, in order to establish that it was not responsible for payment of any of the above referenced medical or diagnostic bills. See Viles. Thus, if the jury finds that the Plaintiff’s failure to attend the scheduled IMEs was not unreasonable, this Court reserves jurisdiction to determine whether OCEAN HARBOR is liable for any and all medical bills that it has received on behalf of ROJAS.
10. This Court finds as a matter of law that the Plaintiff is entitled to prevailing party attorney’s fees and costs pursuant to §§ 627.428 and 627.736. This Court reserves jurisdiction to determine the amount of reasonable attorney’s fees and costs that the Plaintiff is entitled to be awarded by this Court.
WHEREFORE, the Court finds that the Plaintiff is entitled to judgment as a matter of law on the medical bills received from 440 West Medical Center on October 5, 1998 in the amount of $8,125.00 at 80% ($6,500.00) plus 10% interest from the date the bills were received after applying any applicable deductible.
For which let execution issue.
* * *
