Volume 12

12 Fla. L. Weekly Supp. 970a

Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary treatment — Failure to obtain medical report within 30 days — Strict interpretation of PIP statute to require physician’s report as condition precedent only when benefits are withdrawn, but not when claim is outright denied, leads to ridiculous result and defeats purpose of PIP statute — Insurer is barred from denying coverage based on physician’s record review in absence of an independent medical examination and where review fails to account for IME examiner’s findings — Where insurer failed to obtain valid physician’s report within 30 days of receipt of claim, insurer waived right to present countervailing expert testimony from a physician in opposition to treating physician’s affidavit attesting to reasonableness, relatedness and necessity of treatment but may still contest claim through other defenses or substantially impeach treating physician — Because insurer failed to obtain physician’s report within 30 days of claim, that report was peer review without IME, insurer has not produced other proof of non-compensability, and insurer has voluntarily withdrawn affirmative defenses, peer review report and affidavit are stricken and final summary judgment is entered in favor of medical provider — Questions certified

12 Fla. L. Weekly Supp. 986a

Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary treatment — Summary judgment — Affidavit and report of physician who conducted peer review is not sufficient to raise disputed issue of material fact where report based on “to best of my knowledge and information” rather than personal knowledge does not meet requirements of rule 1.510(e), attempt to certify or verify report is insufficient because rules specifically require that report be submitted under affidavit, and allowing insurer to substitute this physician for prior expert stricken as sanction for failure to comply with discovery would make sanction meaningless

12 Fla. L. Weekly Supp. 776a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary expenses — Peer review physician’s affidavit regarding treatment rendered does not create genuine factual issue as to whether medical treatment for which insurer denied coverage was reasonable, related and medically necessary where affidavit was not supported by physical examination and does not state physician’s opinion with regard to propriety of treatment or proper foundation for admissibility under an exception to hearsay rule, and was not dated prior to denial of payment — No merit to argument that requirement that insurer obtain valid report by physician stating treatment is not reasonable, related and necessary prior to withdrawal of benefits applies only to benefits withdrawn, not those withheld — Report of physician who conducted independent medical examination, which is accompanied by authenticating affidavit, creates factual issue as to whether expenses rendered after IME date were reasonable, related and necessary — Motion for summary judgment granted in part

12 Fla. L. Weekly Supp. 249a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary medical expenses — Insurer is precluded from attempting to create genuine issue of material fact on issue of whether expenses were reasonable, related, and necessary by using peer review performed more than 30 days after receipt of medical expenses where there is no other reasonable proof that supports denial or withdrawal of benefits — Summary judgment is granted in favor of insured where insured met burden of establishing prima facie case that medical expenses were reasonable, related, and necessary through affidavit of treating physician; and insurer, which presented only invalid peer review report and testimony of litigation adjuster, failed to present sufficient countervailing evidence to rebut insured’s case — Where insurer never raised fact that insured does not appear as passenger on police report as affirmative defense, that fact alone is insufficient evidence supporting denial or withdrawal of benefits in absence of deposition testimony from officer or other evidence

12 Fla. L. Weekly Supp. 95a

Insurance — Personal injury protection — Coverage — Unreasonable, unrelated or unnecessary medical expenses — Peer review conducted years after disputed bills were received by insurer will not be considered in opposition to medical provider’s motion for summary judgment on reasonableness, relatedness, and necessity of services where insurer did not comply with condition precedent to procure valid physician’s report before withdrawing payment of benefits — Motion for summary judgment granted

12 Fla. L. Weekly Supp. 515a

Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Treatment not reasonable, related, or necessary — Nothing in plain language of section 627.736(7)(a) requires insurer to provide proof of independent medical examiner physician’s licensure before insurer can raise affirmative defense that treatment for which payment was requested was not reasonable, related, or necessary — Because both reasonableness and necessity are essential elements of plaintiff’s case under No-Fault Law, issue of whether IME holds requisite license is to be raised by plaintiff in plaintiff’s pleadings

12 Fla. L. Weekly Supp. 963b

Insurance — Personal injury protection — Coverage — Medical expenses — Unreasonable, unrelated or unnecessary expenses — Peer review report submitted by insurer in opposition to medical provider’s motion for summary judgment on issue of whether medical expenses are reasonable, related and necessary is not competent evidence that gives rise to disputed issue of material fact where report contains no authenticating provision and insurer has submitted no accompanying affidavit — Report created for sole purpose of litigation is inadmissible as business record

12 Fla. L. Weekly Supp. 437a

Insurance — Personal injury protection — Coverage — Defenses — Failure to attend examination under oath — Error to strike defense on ground that EUO requirement was extinguished by assignment of benefits — Answer and affirmative defense specifying failure to attend EUO as condition precedent that did not occur set forth defense with particularity — No merit to argument that defense was properly stricken because insurer breached policy prior to insured’s failure to attend EUO by failing to pay claim within 30 days without reasonable proof that it was not liable for claim where insurer scheduled EUO to occur within 30 days of receipt of medical provider’s bill, although it also provided alternative date outside 30-day period — Where issue is reasonableness of charges, rather than whether medical services were reasonable, related, and necessary, affidavit of litigation adjuster stating charges were above usual and customary charges, which was hearsay but not rank hearsay, was competent evidence disputing medical provider’s affidavit and granting of summary judgment on issue was improper

12 Fla. L. Weekly Supp. 892a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Where medical provider filed affidavit attesting that medical treatment was necessary and related to automobile accident and that charges were reasonable for services provided, insurer filed opposing affidavit from adjuster stating charges were not reasonable per insurer’s bill auditing program but no evidence that services were not necessary and related, and adjuster’s deposition indicates that she could attest that bills were reduced due to use of auditing program but could offer nothing to allow court to conclude results of auditing program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 320c

12 Fla. L. Weekly Supp. 891a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Where medical provider filed affidavit attesting that office consultation he provided was medically necessary and related to automobile accident and that charge was reasonable and consistent charge within medical community, insurer filed opposing affidavit from claims representative stating charge was not reasonable per software program used to assist insurer in determining reasonableness of charges but no evidence that service was not necessary and related, and depositions of claims representative and adjuster could offer nothing to allow court to conclude results of software program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 322a