8 Fla. L. Weekly Supp. 143b
Insurance — Personal injury protection — Insurer not precluded from challenging medical bills on grounds that they were not reasonable, related or necessary simply because it did not obtain reasonable proof to support a denial within thirty days of receipt — Where jury found that bills were not related to accident, trial court erred in denying insurer’s motion for judgment in accordance with verdict on ground that insurer did not obtain independent medical examination or other reasonable proof until after thirty-day period
Certiorari denied at 26 Fla. L. Weekly D2408a
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIANE GURNEY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA199-59. Lower Ct. Case No. CO97-4079. December 8, 2000. Appeal from the County Court for Orange County, Jerry L. Brewer, Judge. Counsel: Moriarty & Botwin, P.A., Kimberly A. Driggers, for Appellant. Steven L. Barcus, for Appellee.
(BEFORE KANEY, PRATHER, and WATTLES, JJ.)
FINAL ORDER AND OPINION
(PER CURIAM.) Appellant, State Farm Mutual Automobile Insurance Company (“State Farm”) seeks review of a partial directed verdict in favor of Appellee, Diane Gurney (“Gurney”) and the Final Judgment entered as a result thereof. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). Pursuant to Florida Rule of Appellate Procedure 9.320, this Court dispenses with oral argument.
Gurney was injured in an automobile accident on March 17, 1996. Gurney was covered by an automobile insurance policy, which included personal injury protection benefits, that was issued by State Farm. Gurney received medical treatment as a result of her injuries and her medical care providers submitted bills for that treatment to State Farm.
Gurney’s physician, Dr. Tall, submitted certain bills for payment for treatment he rendered to her several months after the accident. State Farm did not pay or deny those bills within thirty days of receipt. Instead, State Farm requested additional information from Gurney and Dr. Tall regarding the subject treatment by letters dated October 23, 1996, December 4, 1996, and January 28, 1997. State Farm received no response from Gurney or Dr. Tall and subsequently sought an independent medical examination (“IME”). An IME was performed by Dr. Craig Jones on February 19, 1997. Based upon the IME report issued by Dr. Jones, State Farm discontinued Gurney’s orthopedic benefits on March 17, 1997. State Farm also sent letters to the subject medical providers on April 14th and 15th advising them that it was denying the bills they had previously submitted based upon the IME report of Dr. Jones. Gurney then filed suit seeking payment of her outstanding medical bills.
A jury trial was held on January 14, 15, and 20, 1999. At the close of all evidence, Gurney filed a Motion for Directed Verdict. Gurney’s Motion sought a directed verdict with respect to those medical bills that State Farm received more than thirty days before it obtained the IME report from Dr. Jones. The trial court granted the partial directed verdict on those bills. The trial court then instructed the jury to consider and reach a verdict as to whether all of the outstanding medical bills, including the bills that were the subject of the directed verdict, were related to the accident. The jury found that none of Gurney’s medical bills were related to the accident, including the bills identified in the directed verdict. Thereafter, the trial court denied a motion by State Farm to find in its favor in accordance with the jury’s verdict. A Final Judgment was rendered on July 1, 1999. State Farm filed its Amended Notice of Appeal on July 15, 1999.
On a motion for directed verdict, the standard of review on appeal is the same as the test used by the trial court in determining a motion for a directed verdict. See Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446 (Fla. 5th DCA 1999); Ritz v. Florida Patient’s Compensation Fund, 436 So. 2d 987 (Fla. 5th DCA 1983), rev. denied, 450 So. 2d 488 (Fla. 1984). “A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party.” Hokanson, at 447, citing American Motors Corp. v. Ellis, 403 So. 2d 459 (Fla. 5th DCA 1981), rev. denied, 415 So. 2d 1359 (Fla. 1982).
The trial court relied on United Auto Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998), rev. denied, 735 So. 2d 1289 (Fla. 1999) in granting Gurney’s Motion for Directed Verdict. A review of that case reveals, however, that it is factually distinguishable from the instant case. In Viles, the insurer sent notification to the insured withdrawing coverage without benefit of an IME or other report stating that the subject medical bills were fraudulent and not reasonably related to the automobile accident. Id. at 320. The court held that section 627.736(7)(a), Florida Statutes, requires an insurer to obtain a physician’s report as a condition precedent to withdrawing or denying further coverage. Id.
In this case, State Farm did not withdraw or deny further coverage without an IME report. To the contrary, State Farm’s withdrawal of coverage was based on Dr. Jones’ IME. The issue in this case was whether State Farm’s failure to obtain an IME report, or other reasonable proof to support its denial, within thirty days of receipt of the subject medical bills precluded it from contesting those bills on the grounds of reasonableness, relatedness and necessity. Thus, the trial court’s reliance on Viles was misplaced.
The Fifth District Court of Appeal has held that an insurer is not precluded from challenging a medical bill simply because it did not obtain reasonable proof to support a denial within thirty days of receipt. See Jones v. State Farm Mutual Automobile Insurance Company, 694 So. 2d 165 (Fla. 5th DCA 1997). In Jones, the trial court entered summary judgment in favor of an insurer when the insured failed to attend an IME. In its opinion, the appellate court held that:
Although we cannot credit Jones’ contention that State Farm’s failure to pay Jones’ surgical bills within thirty days relieved him of any further obligation under the policy and requires that judgment be entered in his favor, we do agree that the summary judgment must be reversed . … [I]t is apparent that State Farm did not have reasonable proof that it was not responsible for payment of Jones’ surgical bills. … Thus, 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. (Emphasis added).
Id. at 166.
This Court finds that the Fifth District’s opinion in Jones isbinding on this Court and that State Farm is not precluded from defending this action. In addition, the Court notes that the Fourth District Court of Appeal recently agreed with the holding in Jones and certified conflict with Perez v. State Farm Fire and Casualty Company, 746 So. 2d 1123 (Fla. 3d DCA 1999). See AIU Insurance Company v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000). In that opinion, the Fourth District Court of Appeal relied on its earlier decision in Fortune Insurance Co. v. Everglades Diagnostics, Inc., 721 So. 2d 384 (Fla. 4th DCA 1998), wherein it construed subsection (4)(b) and (c) of section 627.736 as “merely” making the insurer liable for interest if payment was not made within thirty days from the notice of medical bills. The court in Daidone held that:
We interpret section 627.736(4) to mean that if PIP benefits are payable, they are due within thirty days after notice. If the insurer has refused to pay the bill within thirty days and does not have reasonable proof to establish that it is not responsible, then the insurer is liable for ten percent interest when the bill is paid. Failing to obtain proof that it is not responsible for payment, however, does not deprive the insurer of its right to contest payment.
Daidone, at 1112.
The Court finds that State Farm was not precluded from challenging the subject medical bills on the grounds that they were not reasonable, related or necessary. The Court finds that there was reasonable evidence upon which a jury could legally predicate a verdict in favor of State Farm. The Court finds that the trial court erred in granting Gurney’s motion for directed verdict. Final Judgment should be entered in accordance with the jury’s verdict.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment is REVERSED.
This matter is remanded to the trial court for proceedings consistent with this opinion.
The Clerk of Court is directed to transmit a copy of this Final Order and Opinion to the lower tribunal. (KANEY, PRATHER, and WATTLES, JJ. concur.)
* * *
