9 Fla. L. Weekly Supp. 204a

Insurance — Personal injury protection — Error to enter partial summary judgment and final judgment precluding insurer from contesting medical bill on ground that it failed to obtain a written report stating that such care was unnecessary or bill was unreasonable within thirty days of receipt of bill

SUPERIOR INSURANCE COMPANY, Appellant, vs. MTM DIAGNOSTIC, INC. d/b/a FLORIDA PAIN CONTROL & TREATMENT CENTER, on behalf of GERTRUDE LANIER, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA100-68. L.C. Case No. SCO98-6116. November 15, 2001. Appeal from County Court for Orange County, Florida, Jerry L. Brewer, Judge. Counsel: Michael R. D’Lugo, Orlando, for Appellant. Stephan W. Carter, Winter Park, for Appellee.

(Before WALLER, THORPE, and CONRAD, JJ.)

FINAL ORDER AND OPINION

Appellant/Defendant, Superior Insurance Company, appeals the trial court’s final judgment in favor of Appellee/Plaintiff, MTM Diagnostic, Inc. d/b/a Florida Pain Control & Treatment Center on behalf of Gertrude Lanier, awarding Appellee $71.46 and retaining jurisdiction to award attorney’s fees and costs. Appellant essentially asserts that the trial court erroneously relied on Perez v. State Farm Fire and Casualty Co., 746 So. 2d 1123 (Fla. 3d DCA 1999), rev. granted, United Auto. Ins. Co. v. Rodriguez, 767 So. 2d 464 (Fla. 2000) in granting final judgment for Appellee. This Court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(c)(1). After consideration of the record on appeal and parties’ briefs, this Court reverses the trial court’s final judgment.

In Perez v. State Farm Fire and Casualty Co., 746 So. 2d 1123 (Fla. 3d DCA 1999), rev. granted, United Auto. Ins. Co. v. Rodriguez, 767 So. 2d 464 (Fla. 2000), the court held that §627.736(4)(b), Florida Statutes, placed the burden on the insurer to obtain, within thirty days, a medical report as “reasonable proof” under §627.746(7)(a), Florida Statutes,¹ that the insurer was not responsible for payment. Id. at 1125-1126. However, the Fourth District Court of Appeal certified its express and direct conflict with Perez in its decision in AIU Insurance Co. v. Daidone, 760 So. 2d 1110 (Fla. 4th DCA 2000), which held that, “the thirty-day period for payment in the PIP statute applies only to bills for treatment which is reasonable and necessarily incurred as a result of the accident.”² Id. at 1111. The court in Daidone reaffirmed its reasoning in Derius v. Allstate Indemnity Co., 723 So. 2d 271, 272 (Fla. 4th DCA), rev. denied, 719 So. 2d 892 (Fla. 1998), that “an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary.” The Fifth District Court of Appeal recently aligned itself with the Fourth District Court of Appeal on this issue in its decision in Gurney v. State Farm Mutual Auto. Ins. Co., 2001 WL 1174849 (Fla. 5th DCA October 5, 2001) [26 Fla. L. Weekly D2408], in which the panel certified its express and direct conflict with Perez.

In Gurney, the court denied a petition for certiorari review of an appellate decision of the circuit court which held that the insurer was not precluded from contesting a medical bill where it failed to obtain a written report stating that such care was unnecessary or such bill was unreasonable within the thirty days of its receipt of the bill. Id. at 1. The Fifth District Court of Appeal agreed with the circuit court’s ruling, which interpreted §627.736(4)(b), Florida Statutes, to mean that, if PIP benefits are payable, they are due within thirty days after notice, and that if the insurer refuses to pay the bill within thirty days and does not ultimately establish that it is not responsible, then the insurer is liable for ten percent interest on the bill. Id. at 2. “However, the failure to pay within that thirty-day time period does not deprive the insurer of the right to contest payment.” Id.

Here, based on the Fifth District Court of Appeal’s recent decision in Gurney, the trial court erroneously relied on the Perez decision in granting partial final summary judgment and subsequently, final judgment, for Appellee. Hence, the trial court’s final judgment must be reversed.

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s Final Judgment is REVERSED and REMANDED for further proceedings consistent with this opinion. (WALLER, THORPE, and CONRAD, JJ., concur.)

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¹§627.736(4)(b), Florida Statutes (Supp. 1996), provides that personal injury protection benefits:

shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer.

Reasonable proof would be a report from a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related, or necessary. §627.736(7)(a), Fla. Stat. (Supp. 1996).

²The Daidone decision was also in direct conflict with the Third District’s decision in United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998), rev. denied, 735 So. 2d 1289 (Fla. 1999), to the extent that Viles required that insurers obtain a medical report in order to preserve their right to defend a PIP action. Appellee cited the Viles case in support of its Renewed Motion for Partial Final Summary Judgment.

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