8 Fla. L. Weekly Supp. 209b
Insurance — Personal injury protection — Coverage — Unreasonable charge — Reasonable proof — Insured entitled to summary judgment on claim for benefits where there remains no disputed material facts as to whether insurer had reasonable proof that amounts charged by health care provider were unreasonable, and insurer failed to obtain physician’s report required by statute, which is condition precedent to refusing payment of treating physician — Insurer, as matter of law, did not have reasonable proof that charges submitted by health care provider for medical products he dispensed to insured were unreasonable — Excess of policy limits — Insurer not entitled to summary judgment on ground that insured cannot recover because policy limits available to insured had been exhausted — Insured is an aggrieved party who is capable of receiving benefits as awarded by court for outstanding interest on payments owed on bills of health care provider which were not paid prior to benefits being exhausted — Insurer entitled to partial summary judgment regarding its liability for medical benefits in excess of policy limits — Interest — Insured entitled to 10% interest on overdue amount owed to health care provider from date insurer received bill until date benefits were exhausted
LEIGH TAYLOR, individually, Plaintiff, v. FLORIDA FARM BUREAU INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 99-CC-3779-20. November 27, 2000. Frederic Hitt, Judge. Counsel: Michael B. Brehne, Nation Law Firm, Longwood, for Plaintiff. David W. Henry.
FINAL JUDGMENT
THIS CAUSE came on for hearing October 23, 2000 on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment, the Court having heard argument of counsel and being otherwise fully advised in the premises, finds as follows:
UNDISPUTED FACTS
Plaintiff was injured in an automobile accident on August 8, 1999 and sought the care and treatment of Dr. David Libert who, on October 4, 1999, dispensed a cervical pillow, lumbar pillow and lumbar support. Dr. Libert charged $35.00 for the cervical pillow and Defendant paid $15.59. Dr. Libert charged $50.00 for the lumbar pillow and Defendant paid $14.39. Dr. Libert charged $45.00 for the lumbar support and Defendant paid $17.10 leaving an outstanding balance for Plaintiff to pay of $82.92. Although Defendant is obligated to pay 80% of the reasonable charges for medical products, it did not do so in this case. Instead, Defendant chose to pay Dr. Libert’s charges at 20% over invoice.
Defendant does not dispute that the medical products were related to the accident, or that they were medically necessary. Defendant simply believes that the amount which it paid was a reasonable amount.
Defendant had no report that Dr. Libert’s charges were unreasonable, nor did Defendant investigate or attempt to determine whether Dr. Libert’s charges were in keeping with the charges of similar providers in the Central Florida region.
On August 28, 2000, Defendant served its Motion for Summary Judgment indicating Defendant “has proffered testimony that the charges [submitted by Dr. Libert] were not reasonable, and in the absence of any other evidence, summary judgment is proper.” Defendant also argued that because the policy limits available to Plaintiff had been exhausted on other benefits at the time of filing the Defendant’s Motion for Summary Judgment, Plaintiff cannot recover anything in this lawsuit.
Plaintiff filed her Cross Motion for Summary Judgment arguing that: as a matter of law, Defendant did not have reasonable proof that the amounts charged by Dr. Libert were unreasonable; that the reductions were made without first obtaining a report by a physician licensed under the chapter as the treating physician whose treatment authorization was sought to be withdrawn, stating that treatment was not reasonable, related or necessary; and that even if the court finds that the Defendant had reasonable proof to reduce Plaintiff’s benefits, Defendant may still be liable for interest on any outstanding amounts thus precluding summary judgment for the Defendant.
CONCLUSIONS OF LAW
1. Florida Statute §627.736(5)(a)(1999) states that “any physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the products, services and accommodations rendered.” [Emphasis added.] Pursuant to Florida Statute §627.736(5)(a) Dr. Libert may only charge a reasonable amount for the products, services and accommodations rendered to the Plaintiff, Leigh Taylor. The statute does not indicate how the reasonable amount is to be determined except that the amount charged may not be in excess of the amount the physician customarily charges for like products, services or accommodations in cases involving no insurance. Id. Defendant can only refuse to pay a charge if it “has reasonable proof to establish that the insurer is not responsible for the payment.” Fla. Stat. §627.736(4)(b)(1999).
This Court must determine if there are disputed material facts as to the whether Defendant had reasonable proof that the charges submitted by Dr. Libert for the medical products he dispensed to Plaintiff, Leigh Taylor were not reasonable.
The only evidence proffered by Defendant as to the reasonableness of Dr. Libert’s charges was the unsubstantiated opinion of the adjuster. According to the adjuster, the amount of her payment was reasonable. The question is not whether the amount of the payment is reasonable, but rather did Defendant have reasonable proof that the amount of the charge was unreasonable. This Court concludes, as a matter of law, that Defendant did not have reasonable proof that the charges submitted by Dr. Libert for the medical products were unreasonable.
Defendant has proffered no competent evidence as to the reasonableness of Dr. Libert’s charges. Plaintiff submitted ten affidavits of undisputed medical testimony that Dr. Libert’s charges were reasonable in the relevant community. There remains no disputed material facts and summary judgment is GRANTED for the Plaintiff.
2. “[A]n insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection policy, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related or necessary.” Fla. Stat. §627.736(7)(a). The express terms of the statute do not provide for tolling of the thirty (30) day payment period. “[O]nce an insurer receives notice of a loss and medical expenses, it must pay within thirty days, unless, pursuant to §627.736(4)(b), it has obtained reasonable proof to believe that it is not responsible for the payment.” Fortune Insurance v. Pacheco, 695 So. 2d 394, 395 (Fla. 3 DCA 1997), quoting, Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1 DCA 1974). Accord, Martinez v. Fortune Insurance Company, 684 So. 2d 201, 203 (Fla. 4 DCA 1996).
Florida Statute §627.736(7)(a) clearly requires an insurer to first obtain the referenced report before it can refuse to make payment. United Automobile Insurance Company v. Viles, 726 So. 2d 320, 321 (Fla. 3 DCA 1999); Perez v. State Farm Fire and Casualty Company, 746 So. 2d 1123 (Fla. 3 DCA 1999) rev. granted (Fla. May 18, 2000).
Because Defendant failed to obtain the report required by §627.736(4)(a) and because for 25 years the decisional case law in the appellate courts across the state support the plain language of this provision that such a report is a condition precedent to refusing payment, summary judgment for the Plaintiff is hereby GRANTED.
3. Florida Statute §627.736(4)(c) states that all overdue payments shall bear simple interest at the rate of 10% per year. Florida Statute §627.736(4) states that the interest due under this section is for the benefit of the insured, and is an element of damages in any PIP suit. Alvarez v. Ocean Harbor Casualty Insurance Company, 7 Fla. L. Weekly Supp. 543a (County Court, 11th Judicial Circuit, Case No. 98-4696CC20, April 6, 2000). Therefore, assuming Defendant cannot be liable in excess of the policy limits, clearly, they would be liable to Plaintiff for 10% interest when the bill is paid. See, AIU Insurance Company v. Daidone, 25 Fla. L. Weekly D1625, (Fla. 4 DCA 2000)(the insurer is liable for 10% interest when the bill is paid).
As such, Defendant’s Motion for Summary Judgment based on mootness is hereby DENIED, as Plaintiff is an aggrieved party who is capable of receiving benefits as awarded by this Court for outstanding interest on payments owed on the bills of Dr. Libert which were not paid prior to benefits being exhausted. However, Defendant’s Motion for Partial Summary Judgment regarding the liability of Defendant to pay in excess of their policy limit is hereby GRANTED. Defendant is not liable for medical benefits in excess of the policy limits.
IT IS HEREBY ORDERED AND ADJUDGED THAT:
1. Defendant’s Motion for Partial Summary Judgment is hereby GRANTED. Defendant is not liable for benefits in excess of their policy limits.
2. Defendant’s Motion for Summary Judgment on all other issues raised is hereby DENIED.
3. Plaintiff’s Motion for Summary Judgment is hereby GRANTED. Plaintiff shall recover interest on the overdue amount of $82.92 owed to Dr. Libert on behalf of Plaintiff from October 8, 1999 the date Defendant received the bill until July 13, 2000 the date benefits were exhausted at 10% simple interest in the amount of $6.36 representing 280 days.
4. Plaintiff is entitled to reasonable attorney’s fees and costs to be determined by this Court.
The Court hereby enters Judgment in favor of the Plaintiff and against the Defendant in the amount of $6.36 and reserves jurisdiction to determine the amount of attorney’s fees and costs to award to Plaintiff.
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