9 Fla. L. Weekly Supp. 83c
Insurance — Personal injury protection — Error to find that insurer forfeited right to assert affirmative defense to insured’s claim for PIP benefits because insurer failed to obtain medical report showing bills were unreasonable within 30 days of receipt of bills — On remand, if trial court finds material issue of fact regarding insurer’s defense of illegality, insurer should be permitted to prove defense — If insured succeeds on claim at trial, insurer will be required to pay outstanding bills, plus statutory interest and attorney’s fees
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. EMILIO GOMEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 00-207 AP. County Court Case No. 98-6102 CC (25). Opinion filed December 11, 2001. An Appeal from County Court, Miami-Dade County, Ellen Sue Venzer, Judge. Counsel: Jonathan S. Brooks and Nancy W. Gregorie, for Appellant. James D. Payer, for Appellee.
(Before FREDRICKA G. SMITH., J., CELESTE H. MUIR, and ELEANOR L. SCHOCKETT, JJ.)
(PER CURIAM.) We review the trial court’s final summary judgment entered in favor of the plaintiff, Emilio Gomez, against his PIP carrier, State Farm Mutual Automobile Insurance Company. The trial court, following the law as articulated by the Third District Court of Appeal in Perez v. State Farm Fire and Casualty Co., 746 So. 2d 1123 (Fla. 3d DCA 1999), found that State Farm had forfeited its right to assert any affirmative defenses to the insured’s claim for PIP benefits, because it failed to obtain a medical report, within 30 days of receipt of plaintiff’s bills, showing that the bills were unreasonable.
In light of the recently issued opinion from the Florida Supreme Court quashing the Third District Court’s opinion in Perez1, we reverse the summary judgment and remand to the trial court for further proceedings. In particular, if on remand the trial court finds that there is a material issue of fact regarding State Farm’s defense of illegality, State Farm should be permitted to prove this defense at trial. If the plaintiff succeeds in his claim at trial, State Farm will be required to pay the amount of the outstanding medical bills, plus statutory interest and attorneys fees, the only penalties for overdue payment set forth in Florida Statute Sec. 627.736(4)(b) and Florida Statute Sec. 627.428.
Reversed and Remanded. (SMITH, MUIR and SCHOCKETT, JJ., concur.)
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1See, United Automobile Insurance Company v. Rodriguez, 2001 WL 1380001 (Fla. Nov. 8, 2001) [26 Fla. L. Weekly S747a]. (consolidated with State Farm Fire and Casualty Company v. Perez).
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