9 Fla. L. Weekly Supp. 204b
Insurance — Personal injury protection — Error to enter summary judgment in favor of medical provider based on insurer’s failure to pay or obtain reasonable proof for denial within thirty days of receiving provider’s bill
SUPERIOR INSURANCE COMPANY, Appellant, v. VTC TESTING CENTER OF ORLANDO NORTH, INC. d/b/a NATIONAL TESTING CENTERS, Attorney in Fact and Assignee for Betty Edenfield, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA199-101 (consolidated with CVA1-00-31). L.C. Case No. SCO99-4133. October 16, 2001. Appeal from the County Court, Orange County, Jerry C. Brewer, Judge. Counsel: Michael R. D’Lugo, Wicker, Smith, Tutan, O’Hara, McCoy, Graham & Ford, P.A., for Appellant. Peter A. Shapiro, Law Offices of Peter A. Shapiro, for Appellee.
(BEFORE TURNER, SPRINKEL, and MIHOK, JJ.)
FINAL ORDER AND OPINION
(PER CURIAM.) Appellant, Superior Insurance Company (“Superior”), appeals the trial court’s Order on Plaintiff’s Motion for Summary Judgment and the resulting Judgment Against Defendant in favor of Appellee, VTC National Testing Center of Orlando North, Inc. d/b/a National Testing Centers (“VTC”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).
On or about December 11, 1998, Betty Edenfield was injured in an automobile accident. At the time of the accident, Edenfield was insured by Superior pursuant to an automobile insurance policy which provided personal injury protection benefits. Edenfield sought medical treatment for her injury and was referred to VTC for diagnostic testing. On March 26, 1999, VTC performed diagnostic testing on Edenfield and submitted a bill for service rendered to Superior. VTC also received a duly executed power of attorney from Edenfield.
Superior received VTC’s bill on April 1, 1999. The adjuster for Superior, Nina Roberts, first saw the bill on April 8, 1999. On April 19, 1999, Roberts requested a peer review of the bill. On May 7, 1999, Roberts received the peer review report. Based upon the recommendations in the report, Superior denied payment of VTC’s bill by letter dated May 10, 1999.
On June 22, 1999, VTC filed a Complaint for Damages and Declaratory Judgment. Superior filed an Answer and Affirmative Defenses on July 29, 1999. On September 9, 1999 and October 20, 1999, VTC filed Plaintiff’s Motion for Summary Judgment. On November 9, 1999, a hearing was held on VTC’s Motion for Summary Judgment. The trial court entered an Order granting Plaintiff’s Motion for Summary Judgment on November 16, 1999. The trial court specifically found that Superior was precluded from defending its denial of VTC’s bill on the ground that it was medically unnecessary where Superior failed to obtain reasonable proof within thirty days of the submission of the bill. The trial court relied on the holding of the Third District Court in Perez v. State Farm Fire and Casualty Company, 746 So. 2d 1123 (Fla. 3d DCA 1999) and found that Jones v. State Farm Mutual Automobile Insurance Company, 694 So. 2d 165 (Fla. 5th DCA 1997) was not controlling. A Judgment Against Defendant was filed on November 30, 1999.
On December 22, 1999, Superior filed a Notice of Appeal. The Initial Brief was filed on April 17, 2000. An Answer Brief was filed on June 1, 2000. No Reply Brief was filed. On May 23, 2000, Superior filed an Unopposed Motion to Consolidate Appeals. Superior sought to consolidate an appeal from an attorney’s fee award in the underlying cause of action with this appeal.1 This Court entered an Order of Reassignment and Order Granting Unopposed Motion to Consolidate Appeals on June 27, 2000. Thus, CVA1-00-31 was consolidated with this case. However, on August 18, 2000, Superior filed a Response to Order to Show Cause and advised this Court that it was voluntarily dismissing its appeal of the judgment for attorney’s fees rendered below. Therefore, that issue is no longer before this Court.
Appellate review of a summary judgment is conducted de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001). To determine the propriety of a summary judgment, this Court must determine whether any “genuine issues of material fact” remain and whether “the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
The only issue before this Court is whether or not Superior was precluded from challenging the necessity of the diagnostic testing performed on Betty Edenfield as a matter of law. Superior concedes that the amount of the bill was reasonable and that the testing was related to the automobile accident in question. Superior also concedes that the report it relied upon was not received within thirty days of the date it received VTC’s bill.
The statute in question provides, in relevant part, that:
(4) BENEFITS; WHEN DUE. — Benefits due from an insurer under ss. 627.730- 627.740 5 shall be primary . . . and shall be due and payable as the loss accrued, upon reasonab le proof of such loss and the amount of expense s and loss incurred which are covered by the policy issued . . . (b) Personal injury protectio n insuranc e benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnishe d written notice of the fact of a covered loss and of the amount of the same.< /I> If such written notice is not furnishe d to the insurer as to the entire claim, and partial amount supporte d by written notice is overdue if not paid within 30 days after such written notice is furnishe d to the insurer. . . . Howeve r, an y payment shall not be deemed overdue when the insurer has reasona ble proof to establish that the insurer is not responsi ble for the payment , notwiths tanding that written notice has been furnishe d to the insurer. (c) All overdue payment s shall bear simple interest at the rate of 10 percent per year.
VTC argued below, and maintains on appeal, that Superior is precluded from challenging the necessity of the diagnostic testing performed because Superior failed to pay the bill or deny payment within thirty days of receipt. In support of its argument, VTC relies on Perez v. State Farm Fire and Casualty Company, 746 So. 2d 1123 (Fla. 3d DCA 1999). In that case, the appellate court held:
The insurers’ contention that while they failed to obtain a report within the statutory period, they can only be required to pay interest and attorney’s fees is not persuasive. Since 1974, Florida courts have uniformly held that the statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application for benefits. There is no provision in the statute to toll this time limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted “no fault” insurance statute a “no pay” plan — a result we are sure was not intended by the legislature. Pachecho, 695 So. 2d at 395 [Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997)].
Perez, at 1125, quoting Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974). The trial court found the decision in Perez to be controlling and ruled that Superior could not defend on the basis of necessity because it failed to obtain a report within thirty days.
Superior argues that the case of Jones v. State Farm Mutual Automobile Insurance Company, 694 So. 2d 165 (Fla. 5th DCA 1997) is controlling in this matter. In that case, 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, lost its right to contest the claim. (Emphasis added).
Id. at 166. The court in Perez found that this statement was dicta. The trial court agreed with the court in Perez and found that this statement did not result in binding precedent.
The Eighteenth Judicial Circuit addressed the issue presently facing this Court in Branks v. Allstate Insurance Company, CI98-12871-CC-4 (18th Jud. Cir. Ct. December 13, 1999). In his opinion, Judge Silverman focused on whether the decision of the Fifth District Court was binding authority or whether it had no precedential value. Judge Silverman found that if the decision of the Fifth District Court in Jones did not constitute binding authority, then the circuit court was bound to follow the ruling in Perez. See Pardo v. State, 596 So. 2d 665, 666-67 (Fla. 1992). Judge Silverman found that:
The quoted language in Jones represented an important step in that Court’s analysis. It was included in the text rather than a footnote of the case and was part of the first headnote in the opinion. It articulated the continuing right of the insurer to contest the claim without equivocation as though it was settled law. The Fifth District clearly identified the legal principles set forth in the quoted passage as a basis for the reversal of the judgment.
The court, relying on the concurring opinion of Judge Cowart in Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984), found that the quoted language in Jones had precedential value and was binding.2 See also U.S.A. Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. 466 (7th Cir. Cty. Ct. April 10, 2000).
This Court finds that the Fifth District Court’s opinion in Jones is binding and that Superior is not precluded from defending this action. In addition, since the hearing below, the Fourth District Court has agreed with the holding in Jones and certified conflict with Perez. See AIU Insurance Company v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000). In that opinion, the Fourth District Court relied on its earlier decision in Fortune Insurance Company 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.
Id. at 1112-13. Thus, a conflict exists among the circuits and this Court is no longer bound to follow Perez regardless of whether the holding in Jones was dicta or binding precedent. More recently, the Fifth District Court issued an opinion in Gurney v. State Farm Mutual Automobile Insurance Company, 2001 WL 1174849. In that case, the Fifth District Court held that:
The circuit court panel interpreted section 627.736(4)(b), Florida Statutes (1995) to mean that, if PIP benefits are payable then they are due within thirty days of the date the bills are received, and if they are not paid or contested within that thirty-day time period then the insurer is liable for paying ten percent interest when the bill is paid. However, the failure to pay within that thirty-day time period does not deprive the insurer of the right to contest payment. We agree with this ruling while acknowledging that a split of opinion exists in Florida on this issue.
Gurney, at 2. The Fifth District Court recognized and certified conflict with the Third District Court’s opinion in Perez.
This Court finds that the trial court erred in entering summary judgment in favor of VTC based on Superior’s failure to pay or obtain reasonable proof within thirty days of receiving VTC’s bill. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Judgment Against Defendant is REVERSED. This matter is REMANDED to the trial court for proceedings consistent with this opinion.
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1CVA1-00-31.
2Judge Cowart wrote:
When an appellate opinion assigns multiple reasons to support its determination of a point of law, or multiple points of law to support its conclusion, each reason or point becomes embodied in the rationale and resolution or determination of the case and had precedential value.
Mouzon, 458 So. 2d at 391 n.18.
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