18 Fla. L. Weekly Supp. 265c
Online Reference: FLWSUPP 1803GOME
Insurance — Personal injury protection — Discovery — Admissions — No abuse of discretion in granting relief from admissions — Denial of benefits — Error to exclude insurer’s medical expert on ground that peer review was not obtained prior to denial of benefits — Requirement of prior valid medical report does not apply where insurer has denied benefits
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. MAXICARE HEALTH CENTER, a/a/o LAZARO GOMEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-242 AP. L.C. Case No. 07-30083 SP 23. Hearing on: November 18, 2010. January 11, 2011. On Appeal from the County Court for Miami-Dade County. Eric W. Hendon, Judge. Counsel: Michael J. Neimand, General Counsel, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, for Appellee.
(Before MARIN, SAYFIE, and COLODNY, JJ.)
(SAYFIE, Judge.) The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Maxicare Health Center (“Provider”) as assignee of Lazaro Gomez (“Insured”). In the underlying action, Provider filed a complaint against Insurer to recover Personal Injury Protection (“PIP”) benefits.
Prior to trial, the trial court granted Insurer relief from its admission that the treatment was medically necessary. Thus, the issue of medical necessity was added back to the issues to be determined at trial.
The trial court also granted the Provider’s motion in limine which sought to exclude the testimony of Dr. Simon, Insurer’s expert on whether the treatment was reasonable, related, and necessary. Provider’s argument for this motion was that the peer review was not obtained before Insurer’s denial of benefits, and therefore, it was not a valid report pursuant to section 627.736(7)(a), Florida Statutes.
At trial, Provider’s only witness was Dr. Canizares who is a chiropractic physician and owner of the Provider. In his testimony, he described the treatment he provided and further testified that his charges for the treatment were reasonable and that the treatment itself was reasonable, related, and medically necessary. After cross examination, where the Insurer attempted to impeach the witness, Provider rested its case. Insurer advised that based on the trial court’s pre-trial rulings, it had no witnesses.
Provider thereafter moved for directed verdict on the ground that Provider proved its prima facie case. Provider argued that Insurer did not present any evidence to refute Dr. Canizares’s testimony that the treatment was reasonable, related, and medically necessary; and that the Insurer failed to substantially impeach Dr. Canizares. After reviewing notes, and noting the evidence that was presented to prove Provider’s prima facie case, the trial court directed a verdict in favor of Provider. On April 17, 2009, a final judgment was entered and this appeal followed.
Upon review of applicable law and the facts in this case, this Court finds that the trial court did not abuse its discretion when it granted relief from admissions. The record does not reflect that the trial court clearly erred in its interpretation of the facts and the use of its judgment when it granted Insurer’s Relief from Admissions on the issue of medical necessity of the treatment.
As to the issue of the motion in limine, this Court finds that the trial court erred when it granted the Provider’s motion in limine to exclude Insurer’s expert based on the argument that the peer review report was invalid pursuant to Florida Statute 627.736(7)(a). In United Automobile Insurance Co. v. Santa Fe Medical Center a/a/o Telmo Lopez, 21 So. 3d 60, 66-67, (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b], the Third District Court of Appeal held that section 627.736(7)(a) does not apply to cases in which an Insurer has denied PIP benefits (as in the instant case).
Therefore, as to the issue of the directed verdict, this Court finds that but for the grant of the motion in limine, there may have been reasonable evidence upon which a jury could legally predicate a verdict in favor of Insurer, the nonmoving party. Thus, in consideration of the peer report issue, the directed verdict should be quashed.
As such, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.
Appellee’s Motion for Attorney’s Fees, pursuant to section 627.428(1) is DENIED. (MARIN and COLODNY, JJ., concur.)
