9 Fla. L. Weekly Supp. 529a
Insurance — Personal injury protection — Failure to authenticate medical provider’s bill within thirty days does not prevent insurer from raising defense that avoids liability for paying the bill in question — If, within thirty days of receiving provider’s bill, benefits have been exhausted, insurer can raise exhaustion of benefits as defense, even if exhaustion were not previously claimed — Exhaustion of limits after thirty-day period is not relevant — Affirmative defenses of waiver, estoppel, or laches were waived where those defenses were not raised in defendant’s answer — Section 627.736(4) does not contain express requirement that insured or provider contest insurer’s decision to reduce bill — When insurer reduces a reasonable bill for necessary and related services, it does so at its own risk
SEMINOLE CASUALTY INSURANCE COMPANY, Appellant, vs. PHILIP D. SCHTUPAK, D.C., P.A., A Florida corporation (a/a/o Erick Petit), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 01-8683 (11). Re: 00-283 COSO (62). Thomas M. Lynch IV, Judge. Counsel: Nancy Little Hoffman, Pompano Beach. Richard A. Sherman, Ft. Lauderdale.
OPINION
The Appellant insurance company seeks reversal of a Final Summary Judgment. It argues that the failure to authenticate a medical provider’s bill within thirty days does not prevent it from raising a defense that avoids liability far paying the bill in question. That is correct. If the insurer is not liable for some or all of a medical provider’s bill because the bill is not reasonable1 or the services were not necessary2 or related to the accident in question,3 it does not become liable because it has allowed thirty days to pass; it is not barred from raising those defenses after the thirty days.4 Simply stated, the failure to pay a medical bill within 30 days does not make an insurance company liable for a bill on which it would not otherwise be liable. Therefore, if, within thirty days of receiving the provider’s bill, benefits had been exhausted, the insurance company could raise exhaustion of benefits as a defense, even if it had not previously claimed that the benefits had been exhausted.
However, since the Appellant owed the medical provider 80% of the reasonable, necessary, and related expenses5 by thirty days after receipt of the bill,6 its liability was established at that time and the subsequent exhaustion of the benefits was irrelevant in the suit below. Physicians Diagnostic & Re-Hab Inc. v. State Farm Mutual Automobile Ins. Co., No. 97-2591(12) (Fla. 17th Cir. Ct. July 8, 1998) (Miller); Tower Health Center v. Lyndon Property Ins. Co.. 7 Fla. L. Weekly Supp. 627b (Fla. Brwd. Cty. Ct. June 5, 2000) (Pratt); Med+Plus Medical Clinics, Inc., 8 Fla. L. Weekly Supp. 250a (Fla. Manatee Cty. Ct. Jan. 19, 2001) (McMillan); Pinnacle Medical, Inc. v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 663a (Fla. 17th Cir. Ct. April 23, 1998) (H. Moriarty); Nu-Wave Diagnostics v. Fortune Ins. Co., 8 Fla. L. Weekly Supp. 229b (Fla. 17th Cir. Ct. Jan. 22, 2001) (Brescher); Pinnacle Medical, Inc. v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 700a (Fla. Brwd. Cty. Ct. May 28, 1988) (Herring); VTC Testing Center of Orlando North, Inc. v. Allstate Ins. Co., 8 Fla. L. Weekly Supp. 568a (Fla. Orange Cty. Ct. June 26, 2001) (Arnold).
Further, although the Appellant raised a myriad of unrelated affirmative defenses, the trial court was most concerned that the provider may have waived, or be estopped from seeking, the claimed expenses because it did not notify the insurer that it objected to its admittedly improper and unauthorized reduction for two and one-half years. But any affirmative defense that is not raised in the answer is waived7 and the defendant never raised the defenses of waiver, estoppel, or laches.
The Appellant merely raised the affirmative defense that there was insufficient notice under Florida Statute § 627.736(4), so the bill was never overdue. However, it does not argue that it had not received the statutorily required notice of the bill on which it made partial payment; and § 627.736(4) does not contain an express requirement that the insured or provider contest the insurer’s decisions.8 Therefore, when an insurer reduces a reasonable bill for necessary and related services, it does so at its own risk.9 The trial court was correct in refusing to add a new requirement to the statute; that is the role of the legislature.
Accordingly, the order under review is AFFIRMED and the Appellee’s motion for appellate attorneys fees is GRANTED. The case is remanded to the trial court to determine the Appellee’s reasonable and necessary attorneys fees for this appeal.
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1Allstate Ins. Co. v. Schall, 778 So.2d 317 (Fla. 4th DCA 2001); Allstate Indemnity Co. v. Derius, 773 So.2d 1190 (Fla. 4th DCA 2000).
2Allstate Ins. Co. v. Schall, 778 So.2d 317 (Fla. 4th DCA 2001).
3Gurney v. State Farm Mutual Automobile Insurance Company, 795 So.2d 1118 (Fla. 5th DCA 2001).
4United Automobile Insurance Company v. Rodriguez, 26 Fla. L. Weekly S747 (Fla. Nov. 8, 2001); Allstate Ins. Co. v. Schall, 778 So.2d 317 (Fla. 4th DCA 2001); United Automobile Ins. Co. v. Tienna, 780 So.2d 1010 (Fla. 4th DCA 2001); AIU Ins. Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000).
5§ 627.736(1)(a), Florida Statutes.
6§ 627.736(4)(b), Florida Statutes: “Personal injury protection benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same.” [emphasis added.]
7Sunrise Lakes Condominium Apartments, Phase III, Inc. 3, v. Hechtman, 446 So.2d 272 (Fla. 4th DCA 1984).
Waiver and estoppel are affirmative defenses. Rule 1.110(d), Florida Rules of Civil Procedure. An affirmative defense not presented in the first responsive pleading is waived. Rule 1.140(b)(3), Florida Rules of Civil Procedure.
8§ 627.736(4)(b), Florida Statutes, mandates that, when an insurer makes a partial payment, it must provide “the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.” [emphasis added.] However, it does not require the claimant to contest the claim with the insurer to maintain the right to the full payment.
9Cf. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) (Insurance company bears the risk of statutory sanction of attorneys fees for paying incorrect amount to medical provider.) “It is the incorrect denial of benefits, not the presence of some sinister concept of `wrongfulness,’ that generates the basic entitlement to the fees if such denial is incorrect.” Id. at 684.
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