18 Fla. L. Weekly Supp. 913a
Online Reference: FLWSUPP 1809CICIInsurance — Personal injury protection — Disclosure and acknowledgment form — Affirmative defense that medical provider failed to file D&A form with insurer and failed to file form for treatment subsequent to initial treatment is legally insufficient to avoid summary judgment where statute does not specify remedy for failing to properly complete D&A form and does not require submission of form to insurer or require form for any services after first treatment — Independent medical examination — Failure to attend — Error to enter summary judgment where insurer raised IME no-show defense — Trial court’s disallowance of bills received by insurer after IME cutoff letter did not correctly recognize IME no-show defense where all charges received by insurer after date of missed IME should have been disallowed — Discovery — Depositions — No error in requiring insurer to pay expert witness fee for deposition testimony of treating physician — Reverse as to IME no-show defense and remand to redetermine amount of judgment based on date of receipt of bills
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. THERAPY ONE SOLUTION, INC., a/a/o Javier Cicilio, Appellee. Circuit Court, 11th Judicial Circuit (Appellate), in and for Miami-Dade County. Case No. 09-060 AP. L.T. Case No. 08-2540 CC 05. June 16, 2011. An Appeal from a decision rendered by the Miami-Dade County Court, Catherine Mary Pooler, Judge. Counsel: Michael J. Neimand and Lara J. Edelstein, of the Office of the General Counsel of United Automobile Insurance Company, for Appellant. Michael L. Feldman and Mark J. Feldman of Mark J. Feldman, P.A., for Appellee.
(Before BARZEE FLORES, ZABEL and EIG, JJ.)
(ZABEL, J.) This is an appeal from a final summary judgment in favor of Appellee Therapy One Solutions, Inc. as assignee of Javier Cicilio (“Therapy One”). Javier Cicilio (“Mr. Cicilio”) treated with Fred Dweck, M.D. (“Dr. Dweck”), a medical physician employed by Therapy One, for injuries sustained in an automobile accident. Therapy One, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits.
In response to Therapy One’s complaint, as its first affirmative defense, United Auto stated that Dr. Dweck and Therapy One, failed to complete and submit to United Auto, a Disclosure and Acknowledgment Form (“D & A Form”), which was statutorily mandated by Section 627.736(5)(e), Florida Statutes (2007). As its second affirmative defense, United Auto stated that Cicilio failed to attend two scheduled Independent Medical Examinations (“IMEs”). One IME was scheduled to take place on October 31, 2007, with George Rovito, M.D. (“Dr. Rovito”) and the other IME was scheduled to take place on November 28, 2007 with Mark Sachs, M.D. (“Dr. Sachs”).
United Auto argues three issues on appeal and maintains the trial court erred with respect to each issue.
The first matter on appeal concerns the trial court’s grant of Therapy One’s motion for final summary judgment, which was filed with the trial court on May 9, 2008. Therapy One represented to the trial court, that there was no genuine issue of material fact. Therapy One indicated that “[w]ith regard to affirmative defenses from defendant, to date defendant has failed to file any answer or affirmative defense even though it was served with the complaint on February 13, 2008.” This statement is clearly in error, because United Auto filed its affirmative defenses in its answer filed with the trial court as of March 12, 2008.
Therapy One attached the affidavit of Dr. Dweck to its motion. Dr. Dweck attested that in his opinion, all of the treatment rendered was RRN. Therapy One also attached the affidavits of Donna Viera, records custodian for Therapy One, and Lyzzette Arroyave, records custodian for Therapy One’s attorney, Mark J. Feldman, P.A. Medical bills and records from Therapy One were attached to Therapy One’s motion rather than to each individual affidavit. Also attached was a demand letter, complying with the statute. However, no D & A Form was attached.
In opposition, United Auto never filed any affidavits to rebut Dr. Dweck’s sworn affidavit. United Auto filed a motion for summary judgment regarding the failure to submit the D & A Form, and a second motion for summary judgment regarding Cicilio’s failure to attend the two scheduled IMEs. United Auto attached to its D & A Form summary judgment motion, the affidavit of Ximena Rodriguez, United Auto’s litigation adjuster. Ms. Rodriguez attested that United Auto received the first set of medical bills from Therapy One, on October 15, 2007, and that no D & A Form was received from Therapy One.
United Auto attached to its IME no-show motion for summary judgment, affidavits of Rick Gutierrez (records custodian of Certified Medical Consultants, the company that scheduled the IMEs), Litigation Adjuster Rodriguez, Dr. Rovito, and Dr. Sachs. Their affidavits attested to the scheduling and notice of the IMEs, the failure of Cicilio to attend either appointment, and a lack of contact from either Cicilio or his counsel, regarding cancellation or rescheduling. In opposition, Therapy One filed the affidavit of Dr. Dweck indicating that he had no reason to disbelieve that he verbally made a disclosure and acknowledgment to Cicilio at the time of the first treatment. Additionally, in the affidavit of Ms. Viera, she alleged that Therapy One was not in receipt of any information about IMEs, letters suspending benefits, or any other documentation indicating that Cicilio missed any scheduled appointments.
A final summary judgment was entered on January 8, 2009, and no transcript has been provided of those proceedings. United Auto filed a motion to vacate the final summary judgment, which was heard on January 26, 2009. At rehearing, United Auto conceded the RRN issue, but argued that its two summary judgment motions, had never been heard prior to the trial court entering final summary judgment. Therapy One argued that based on the second affidavit of Dr. Dweck, that it overcame United Auto’s D & A Form defense, and based on the affidavit of Ms. Viera, that United Auto’s IME defense was overcome. The trial court denied United Auto’s motion, leading to the first issue on appeal.
The second matter on appeal concerns whether the trial court erred in requiring United Auto to pay an expert witness fee to take the deposition of Dr. Dweck. Therapy One had filed a motion for protective order. United Auto made an objection, contending that a treating physician would not be entitled to an expert witness fee. The trial court agreed with Therapy One and granted the motion, ordering United Auto pay $400.00 an hour, as an expert witness fee. Moreover, the trial court warned United Auto, that if it set Dr. Dweck’s deposition, and failed to cancel more than 48 hours prior to the deposition, that United Auto would have to pay Dr. Dweck a $400 disruption fee. United Auto set Dr. Dweck’s deposition, and then canceled it, the day of the deposition. Therapy One moved for sanctions, and the trial court ordered the $400 be paid, which United Auto paid immediately, leading to the second issue on appeal.
As to the first issue on appeal, we hold that the decision of the trial court should be affirmed in part, and reversed in part. Where a defendant asserts an affirmative defense, in order to succeed on a motion for summary judgment, plaintiff must either disprove those defenses or establish their legal insufficiency. Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). Here, the affidavits of Ms. Viera and Dr. Dweck, do little to factually shed light on the validity of United Auto’s defenses. Haven Federal Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”) A plaintiff is not entitled to summary judgment unless he or she can conclusively disprove the existence of a defense raised by the defendant. O’Neal v. Brady, 476 So. 2d 294 (Fla. 3d DCA 1985).
We will not revisit the issue of the RRN of the bills, since United Auto has failed to preserve this issue. Cabral v. Diversified Servs., Inc., 560 So. 2d 246, 248 (Fla. 3d DCA 1990) (holding that “generally, only questions that were before the trial court may be reviewed on appeal”); Little Beaver Theatre, Inc. v. State ex rel. Gerstein, 259 So. 2d 217, 218 (Fla. 3d DCA 1972) (holding that only questions timely and properly raised below can be presented). However, with respect to the defenses of the D & A Form and the IME no-show, each defense will be considered in turn for legal insufficiency.
No transcript or stipulated statement has been provided of the January 8, 2009 hearing and in the absence of both, our review is limited to determining whether there are any legal errors which appear on the face of the order. See Porteous v. Porteous, 937 So. 2d 1179 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2319b]; Prymus v. Prymus, 753 So. 2d 742 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D711a]; Katowitz v. Katowitz, 684 So. 2d 256, 257 n.1 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D2558b].
Under Florida law, a “defense” is an allegation raised by the defendant that, if true, can defeat or avoid the plaintiff’s cause of action. Lovett v. Lovett, 112 So. 768 (Fla. 1927). Under this definition, Therapy One’s failure to include a D & A Form, would not constitute a defense, as applied in this case. See Florida Medical & Injury Center, Inc. v. Progressive Exp. Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. In Florida Medical & Injury, the insurer “filed an answer and affirmative defenses which included, inter alia, an affirmative defense that FMIC’s D & A form failed to comply with the requirements of section 627.736(5)(e), Florida Statutes, because it was not properly completed.” Id. at 336. The insurer, Progressive argued that the failure to submit a proper D & A Form, would relieve it of any further liability for payments. The Fifth District Court of Appeal rejected this argument1 and held:
The question then becomes: “What is the consequence for failing to comply?” Progressive contends that if the courts fail to find that the remedy for the submission of a flawed D & A form is that the claim cannot be enforced by the courts, the duty “would be rendered meaningless.” First, the Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.
Id. at 341 (emphasis added). Therefore, the district court was unwilling to guess, what the remedy would be, for a provider’s failure to properly complete a D & A Form, where the statute was silent on its effect. Id. This Court will not encroach on the province of the Legislature to do so. United Auto. Ins. Co. v. A 1st Choice Healthcare Systems, 21 So. 3d 124, 129 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a] (reversing judgment, where no private right of action for the failure of a PIP insurer to furnish its insured with an EOB, could be found in section 627.736).
Interestingly, the affidavit of Litigation Adjuster Rodriguez, would seem to suggest that Therapy One failed to comply with a statutory requirement of submitting the D & A Form to United Auto. United Auto’s motion for summary judgment on the D & A Form indicates the same as it argues, “[p]ursuant to Florida Statute, Sec. 627.736(5)(e), the Plaintiff had a statutory obligation to submit a disclosure and acknowledgment form for the treatment or services rendered on October 1, 2003 or thereafter.” United Auto has suggested two requirements, neither of which can be found in the statute: that Therapy One was required to submit a D & A Form to United Auto, and that Therapy One had an ongoing obligation to comply with the D & A Form requirement for treatments subsequent to the first treatment. First, section 627.736(5)(e), never indicates that the provider has to furnish the insurer with the completed D & A Form.2 Second, section 627.736(5)(e), indicates that a D & A form is not required for any services after the first treatment.3
This Court cannot at United Auto’s behest, enforce statutory requirements which do not exist. Ortega v. United Auto. Ins. Co., 847 So. 2d 994, 997 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D796a] (reversing the circuit court when it affirmed a directed verdict in United Auto’s favor, where United Auto argued that section 627.736(5)(d) required the provider submit proof that it was a validly licensed medical entity). Therefore, we hold United Auto’s D & A Form defense was legally insufficient to avoid summary judgment.
We turn our attention to United Auto’s IME no-show defense. Here, Therapy One, defending the correctness of the trial court’s order, argues that “taking those facts in the light most favorable to defendant as the non moving party for summary judgment” that the trial court reduced “the medical bill [sic] for all charges after the cut off letter, if the plaintiff wants a reduced summary judgment.” This position suggests, that the date of the IME cutoff letter, somehow controlled which bills should be paid, and which bills were not reimbursable. This is not the law.
The procedure that was approved in the Third District Court of Appeal, can be found in U.S. Sec. Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D507a]. The district court found that it was not based on the dates of service, that bills would not be paid, but based on the dates, those bills were received by the insurance company. Id. at 595 (“Simply put, the parties seek to establish the true meaning of the term “benefit” as used in the statute. We agree with U.S. Security that the ‘benefit’ the statute refers to is the payment of medical bills and not medical treatment.”) Additionally, in Silva, the insured failed to attend two appointments, the date used as the cutoff date, was not the date of the letter itself, but rather the date of the first missed appointment.4 More specifically, Silva missed her IME appointments on September 2, 1993 and September 24, 1993, and U.S. Security sent a letter indicating benefits were suspended as of September 2, 1993. The Third District agreed with U.S. Security’s arguments, and reversed and remanded, directing with instructions that final judgment be entered in favor of U.S. Security. Id. at 596.
Therapy One’s position, suggested that the insurer was required to send an IME letter, and that somehow, the timing of the letter and the content of the letter would have had a bearing on the issue of what bills were covered. The Fourth District Court of Appeal rejected this form of argument in favor of coverage by estoppel or waiver, and held that “[i]naction by the insurer does not result in the insurer having to pay a bill which it otherwise would not have to pay.” AIU Insurance Co. v. Daidone, 760 So. 2d 1110, 1111 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a].5 Section 627.736 never imposes a condition on any PIP insurer, that an IME cutoff letter must be sent to notify the insured.6 This is directly contrary to Therapy One’s contention that an insurer may only “withdraw or cut off payment of insured’s medical bills after a cut off letter.” Just as much, as United Auto could not require this Court to enforce nonexistent requirements, neither can Therapy One require this Court to insist that insurers have a statutory obligation to send a letter withdrawing benefits, when a PIP claimant refuses to attend two reasonably scheduled IME appointments.
Therapy One does not dispute that Cicilio had no reasonable justification for failing to attend the scheduled IMEs. Cicilio knew or should have known that failure to attend without reasonable excuse, would result in United Auto not being held liable for any “subsequent personal injury protection benefits”, based on the date of his unreasonable failure to attend the first appointment. United Auto. Ins. Co. v. Custer Medical Center, 990 So. 2d 633 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2146a] (reversing circuit court and reinstating decision of trial court, which directed verdict in favor of insurer where insured failed to attend an IME on April 11, 2002 and April 29, 2002, and United Auto paid benefits only up to April 11, 2002).
The dates of the IME appointments were October 31, 2007 and November 28, 2007. Therapy One claims that the trial court used simple math to arrive at its calculations, but in light of the above, the math here is not so simple to support this “no harm, no foul” type of argument. Therapy One’s bills for dates of service October 8, 2007 through October 25, 2007, total $2,745.00. According to United Auto’s PIP log, the bills were received on November 5, 2007, after the date of the first missed IME appointment. Bills for dates of service October 29, 2007 through November 22, 2007, total $3,295.00. United Auto received them on December 26, 2007, also after the date of the first missed IME appointment.
The only bills that would have been payable, would have been bills for dates of service rendered September 12, 2007 through October 4, 2007, totaling $3,295.00, which United Auto received on October 15, 2007. Eighty percent of this amount would have been $2,636.00. Although, we have not added the statutorily mandated amount of interest per annum to this amount, this amount is still well below the $5,238.40 awarded. The calculations of the damages depend on determinations of facts and of law that do not seem as clear as Appellee would have this Court believe; determining the amount of a unliquidated monetary award of a final summary judgment in a defendant’s absence, without allowing that defendant the opportunity to be heard, is a violation of due process, under the unique facts of this case.
As to the second issue, which concerns the expert witness fees for Dr. Dweck’s deposition, United Auto’s arguments are not convincing. See United Auto. Ins. Co. v. Eduardo Garrido, DC, P.A., 21 So. 3d 112 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2218b] (affirming without discussion, the correctness of a non-final order granting the treating physician an expert witness fee for his deposition); Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1171a] (holding that the Third District Court of Appeal has not established a rigid “black letter rule” that treating physicians can never be considered an expert under the “one expert-per-specialty rule”). Therapy One argues that Dr. Dweck serves as an expert under Florida Rule of Civil Procedure 1.390(a). Having reviewed the affidavit of Dr. Dweck, we find that Dr. Dweck clearly fits this definition.
We agree with Therapy One’s reliance upon Progressive Express Ins. Co. v. Professional Medical Group, Inc., which held that, pursuant to Rule 1.390, a treating physician participates as an expert witness entitling him or her to an expert witness fee. 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. Ct. Oct. 14, 2003). Florida Rule of Civil Procedure 1.390 and not Florida Rule of Civil Procedure 1.280 or the cases cited by United Auto, controls this fee dispute. United Auto is clearly aware that Dr. Dweck is an expert within the meaning of Rule 1.390(a). Hall v. Haldane, 243 So. 2d 571 (Fla. 1971).7 In the instant case, the trial court in granting the motion, considered Dr. Dweck’s qualifications, made its findings and determined that he qualified as an expert. See Van Sickle v. Allstate Insurance Company, 503 So. 2d 1288, 1289 (Fla. 5th DCA 1987) (stating that the “qualification of an expert witness and the perimeters of his expertise are conclusions of fact to be determined advisedly by the trial judge”).
Having reviewed Rule 1.390, Haldane, and Progressive Express, we find no error in the lower court’s determination that Dr. Dweck is an expert witness and that the act of deposing him entitles him to a fee. Therefore, we affirm the trial court’s non-final order requiring United Auto to pay expert witness fees to take Dr. Dweck’s deposition, and the imposition of the $400 fee when United Auto cancelled the deposition at the last minute. The trial court did not abuse its discretion.
Thus, we affirm the summary judgment finding below that Dr. Dweck’s bills and treatment were RRN. We affirm the summary judgment finding as to the D & A Form. We reverse the summary judgment finding concerning the IME no-show defense, and we remand for the trial court to determine the amounts based on the dates the bills were received by United Auto, using a cutoff date of October 31, 2007. We affirm the lower court’s grant of the motion for protective order, awarding expert witness fees for Dr. Dweck’s deposition.
Appellee’s Motion for Attorney’s Fees is denied. Because Appellee is not the prevailing party in this appeal, we will not award appellate attorney’s fees. § 627.428(1), Fla. Stat. (2009).
FOR THESE REASONS, we direct the lower court to vacate the order granting final judgment in favor of Appellee and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. AFFIRMED in part, REVERSED in part. (BARZEE FLORES, and EIG, JJ., concur in result only.)
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1The Fifth District observed that the legislative intent of section 627.736(5)(e), was actually to benefit the insured, not hurt the insured by leaving him responsible for unpaid medical bills, and that failure of the insurer to bring this deficiency to the insured’s attention, will waive the issue. Id. at 339. (“The D & A form is to protect the patient as well as the insurance company, and the insured is not benefited if the insurer is relieved of the duty to pay a legitimate charge the insured has incurred for treatment.”)
2Compare with §§ 627.736(4)(b) (2007) (“Personal injury protection insurance benefits paid pursuant to this section 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.”) and 627.736(11), Fla. Stat. (2007) (“As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.”) (emphasis added).
3In pointing out that section 627.736(5)(e) applies only to the first date of treatment, and not subsequent dates of treatment, Therapy One argues, “Nevertheless, out of the most extreme caution to prevail at the summary judgment hearing, plaintiff agreed to reduce the full amount . . . [of] $500.00 charged for the entire first visit, where, as part of the first visit, the disclosure and acknowledgment takes place.” Therefore, the trial court never awarded any monies for the first visit to Therapy One as part of the final judgment.
4Id. (“The question presented requires us to determine whether “subsequent personal injury protection benefits” due and payable to an insured who has failed to attend an I.M.E, refers to treatment rendered subsequent to the failure to attend same or to medical bills which are received by the insurer after the failure to attend but incurred before the I.M.E was scheduled.”)
5Under Florida law, the doctrine of waiver and estoppel is not available to bring within the coverage of the policy, risks not covered by its terms. Six L’s Packing Co. v. Florida Farm Bureau Mutual Insurance Co., 268 So. 2d 560, 564 (Fla. 4th DCA 1972), cert. discharged, 276 So. 2d 37 (Fla. 1973) (“The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is [n]ot applicable to matters of Coverage as distinguished from grounds for Forfeiture.”).
6In section 627.736(11), there is one reference to a written notice to be sent when an insurer is withdrawing payments on a section 627.736(7)(a) report, but the reference is indirect, in passing, and does not constitute a requirement on an insurer. “To the extent that the demand involves an insurer’s withdrawal of payment under paragraph (7)(a) for future treatment not yet rendered, the claimant shall attach a copy of the insurer’s notice withdrawing such payment and an itemized statement of the type, frequency, and duration of future treatment claimed to be reasonable and medically necessary.” § 627.736(11), Fla. Stat. (2007).
7The Florida Supreme Court discharged the writ of certiorari and affirmed the decision of the Fourth District in Haldane v. Hall, 234 So. 2d 739 (Fla. 4th DCA 1970) (“It appears from the deposition that Dr. Jack Arron was one of the plaintiff’s treating physicians. It was the doctor’s knowledge gained in treating the plaintiff that was adduced by the deposition.”)
