IDORABLE RENEUS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.

5 Fla. L. Weekly Supp. 173c

Insurance — Personal injury protection — Failure to pay benefits within thirty days based on late notice, intentional act, and lack of cooperation — Before payment may be withheld, insurer must obtain opinion from independent medical examiner that treatment was not reasonable, related to covered event, or necessary — Affidavit of independent medical examiner submitted by insurer cannot be used in instant case to support failure to pay past benefits where IME did not find that past treatment was unreasonable, unrelated, or unnecessary — Opinion of IME who was licensed chiropractor cannot be used to deny payment of medical doctors who were licensed under different chapter — IME’s opinion not basis for denying payment for treatment provided after date of independent medical examination where court could not infer that it was IME’s opinion that insured would never need treatment in the future under any circumstances, there was no evidence that IME was even aware of facts relating to any future treatment, and court would have to infer that no change had taken place that would have affected IME’s opinion — Policy of insurance at issue was in record — Exclusions — Intentional injury or injury while committing felony — Record contains no evidence to support insurer’s contention that insured was injured while committing a felony or that insured intentionally caused another vehicle to rear-end her vehicle in order to cause injury to herself — Notice — In view of uncontroverted facts sworn to by insured that she gave oral notice of accident to agent within two or three days of accident and undisputed evidence that agent received written notice no later than twenty-five days after accident, insurer’s claim that it was materially prejudiced by late notice is rejected — Assistance and cooperation — Nothing in record refutes insured’s statements that she fully cooperated with insurer in its investigation of claim — Insured’s motion for summary judgment granted

IDORABLE RENEUS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. In the County Court in and for Palm Beach County. Case No. MC-96-3778-RE. October 21, 1997. Robert V. Parker, Judge.

FINAL JUDGMENT

Pursuant to the Plaintiff’s Motion for Summary Judgment heard October 14, 1997 and the order granting summary judgment rendered in this action,

IT IS ADJUDGED that the Plaintiff, IDORABLE RENEUS, recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of $9,625.23 with interest thereon as provided in F.S. §55.03 for which sums let execution issue.

The court reserves jurisdiction for the taxing of attorneys fees and costs.

— — — —

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came to be heard upon Plaintiff, IDORABLE RENEUS’s Motion for Summary Judgment on October 14, 1997. Based upon the proofs submitted by Plaintiff and Defendant the Court makes the following findings of undisputed fact and conclusions of law:

I. PROCEDURAL POSTURE OF CASE

A. NATURE OF ACTION

This is an action for overdue PIP benefits, interest and declaratory relief. The Complaint was filed by the Plaintiff, IDORABLE RENEUS (hereinafter RENEUS) on March 1, 1996 against Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereafter UNITED AUTO). RENEUS alleged that she gave notice of covered losses but UNITED AUTO failed to pay within thirty (30) days as required by F.S. §627.736(4)(b). RENEUS further alleged in a count for declaratory relief that UNITED AUTO had refused to pay on the basis of late notice, intentional act and lack of cooperation. RENEUS sought to have a determination that those coverage defenses were without merit.

UNITED AUTO filed its Answer, Affirmative Defenses and Demand for Jury Trial on January 29, 1997 after a default entered on November 21, 1996 was vacated for excusable neglect on January 13, 1997 by agreed order. UNITED AUTO denied that RENEUS had given notice of losses and denied that it had failed to pay PIP benefits within thirty (30) days as required by F.S. §627.736(4)(b). However, it admitted that the policy of insurance was issued by UNITED AUTO to RENEUS. UNITED AUTO also claimed as affirmative defenses that RENEUS gave late notice, failed to cooperate, was guilty of misrepresentation by giving an incorrect address on her application, and intentionally injured herself while committing a felony thereby excluding PIP benefits under F.S. §627.736(2)(b). The case was at issue and noticed for trial by RENEUS on February 25, 1997.

B. INITIAL EXTENSIVE DISCOVERY IN 1996

Extensive discovery was pursued by both parties in 1996 for several months. First UNITED AUTO served subpoenas for production of all records from all of the treating physicians of RENEUS pursuant to Florida Rules of Civil Procedure 1.351(b) on July 2, 1996. UNITED AUTO also served interrogatories and a request to produce on July 2, 1996. On July 22, 1996 RENEUS responded to UNITED AUTO’s request to produce. UNITED AUTO moved to compel answers to its interrogatories on July 25, 1996. RENEUS filed answers to interrogatories which described the accident under oath in answer to UNITED AUTO’s interrogatory #5 and listed all of the medical bills submitted under PIP in answer to UNITED AUTO’s interrogatory #6 on July 25, 1996. UNITED AUTO then sought the deposition upon oral examination of RENEUS by notice served July 30, 1996 setting her deposition for October 17, 1996. UNITED AUTO served another subpoena for medical records of RENEUS pursuant to Florida Rules of Civil Procedure 1.351(b) on July 31, 1996. RENEUS sought the deposition upon oral examination of the claim manager of UNITED AUTO, Carl Bickel, on August 1, 1996 setting his deposition for October 17, 1996. RENEUS served UNITED AUTO with her first request to produce on October 3, 1996. UNITED AUTO responded to the request to produce on October 25, 1996 providing copies of the medical bills submitted under its PIP coverage with date stamps showing the dates that the medical bills were received by UNITED AUTO. RENEUS served UNITED AUTO with her first request for admissions and her first interrogatories on October 30, 1996. UNITED AUTO filed a response to the request for admissions of RENEUS on December 4, 1996 admitting it insured the motor vehicle RENEUS was occupying (#2), that PIP benefits are overdue if not paid within 30 days after written notice of a covered loss and of the amount of same (#6) and that all overdue PIP benefits bear interest at the rate of 10% (#13).

C. CONTINUED EXTENSIVE DISCOVERY IN 1997

Extensive discovery resumed in 1997 after approximately a six (6) month break. RENEUS served expert interrogatories and moved to compel answers to the first interrogatories on July 11, 1997. RENEUS and UNITED AUTO served disclosure of all witnesses in accordance with the pretrial order of this Court on July 11, 1997. RENEUS filed a second request for admissions on July 11, 1997. RENEUS served a second set of interrogatories as a follow up to her request for admissions on July 14, 1997. RENEUS also filed a motion for in camera inspection on July 15, 1997. RENEUS served subpoenas pursuant to notice Florida Rules of Civil Procedure 1.351(b) for records from UNITED AUTO’s IME, insurance agent, and insurance investigator on July 17, 1997. On July 21, 1997 this Court compelled UNITED AUTO to answer the first interrogatories propounded by RENEUS. UNITED AUTO objected to the subpoenas pursuant to Florida Rules of Civil Procedure 1.351(b) thereby effectively preventing this means of obtaining discovery to RENEUS on July 25, 1997. ABC Liquors, Inc. v. Berkey, 589 So.2d 457 (Fla. 5th DCA 1991). Thus, RENEUS was forced to serve notices of depositions setting the depositions of the records custodian of UNITED AUTO’s IME for August 8, 1997, UNITED AUTO’s investigator for August 15, 1997, UNITED AUTO’s insurance agent for August 8, 1997, and UNITED AUTO’s IME appointment company for August 15, 1997. UNITED AUTO also noticed RENEUS for deposition upon oral examination on July 28, 1997 setting her deposition for August 7, 1997. Instead of answering the first interrogatories by RENEUS as ordered by the Court, UNITED AUTO sought to extend the time to answer on July 31, 1997. RENEUS sought the depositions of various UNITED AUTO adjusters setting the depositions for August 19, 1997 on August 4, 1997. UNITED AUTO filed answers to the first interrogatories of RENEUS on August 8, 1997. In answer to interrogatory #8, UNITED AUTO listed the medical bills received with the dates received further stating that $-0- had been paid. The deposition of UNITED AUTO’s insurance agent, James Sullivan, was taken on August 8, 1997. The agent testified that he received written notice of the accident from RENEUS on or about October 5, 1994 and that he relayed the notice to UNITED AUTO the same day. On August 8, 1997 RENEUS also took the deposition of the records custodian of UNITED AUTO’s IME, Kratrinka Combs, who revealed that the IME physician had no report specifically stating that the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary. On August 9, 1997 RENEUS sought to obtain a court order requiring UNITED AUTO to produce its adjusters for depositions with the original claim file present. UNITED AUTO responded to the second request for admissions of RENEUS on August 12, 1997 admitting that it had no report from any medical doctor stating that the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary. UNITED AUTO further admitted that it had no report from any chiropractic physician specifically stating that the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary for any treatment before December 20, 1994. RENEUS moved to compel answers to her second set of interrogatories and expert interrogatories on August 19, 1997. On August 19, 1997, RENEUS noticed the taking of her main treating physician’s video taped deposition for August 26, 1997. On August 19, 1997 UNITED AUTO filed its unverified answers to the second interrogatories of RENEUS. On August 20, 1997 UNITED AUTO filed its answers to the expert interrogatories of RENEUS. On August 26, 1997 the deposition of the main treating physician was taken.

II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND THE PROOFS

RENEUS filed a very detailed motion for summary judgment on July 15, 1997. The motion set forth that RENEUS was involved in a rear-end auto accident on September 10, 1994 in which she sustained personal injury. The motion listed each and every unpaid medical bill from each and every one of her medical providers. The motion also alleged that UNITED AUTO had been in possession of all of these unpaid medical bills more than thirty (30) days before the suit was filed. The motion also explained that although UNITED AUTO had obtained an IME report from Dr. Hanson, the report did not specifically state that any of the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary. The motion even calculated the per diem of interest that would be due on each of the unpaid medical bills. The motion set forth its grounds and legal authority in support of summary judgment with exacting particularity. The motion conclusively established that RENEUS had been involved in a motor vehicle accident and was entitled to obtain payment for her unpaid medical bills from her no-fault insurer, UNITED AUTO, with interest. The motion also negated each and every one of the affirmative defenses raised by UNITED AUTO.

On July 15, 1997 RENEUS filed all the documents produced by UNITED AUTO in response to her first request to produce which included all of the medical bills with date stamps showing when they were received by UNITED AUTO. On July 24, 1997, RENEUS noticed the motion for summary judgment for hearing August 22, 1997. RENEUS filed an extensive affidavit on August 11, 1997 wherein she swore that she was involved in an auto accident which caused her personal injury. In the affidavit, RENEUS also swore that she provided oral notice to UNITED AUTO’s insurance agent within two or three days after the accident. RENEUS swore she furnished UNITED AUTO with a PIP application and complied with each and every request of UNITED AUTO. Her affidavit also listed each and every bill and swore that there had been no misrepresentations and that RENEUS had not caused injury to herself intentionally. The affidavit also specifically denied that RENEUS was in the process of committing a felony when she had the accident. On August 18, 1997, RENEUS also filed the depositions of the insurance agent and the records custodian of the IME together with her answers to UNITED AUTO’s first interrogatories. UNITED AUTO filed an affidavit on August 18, 1997 from its IME physician clarifying his report of December 20, 1994 stating that it was his opinion that no further treatment was necessary or related after December 20, 1994. Dr. Hanson’s affidavit also gave the opinion that the medical physicians did not render treatment. UNITED AUTO moved on August 19, 1997 to strike the proofs that were filed by RENEUS after August 11, 1997 since the summary judgment was scheduled for August 22, 1997. The hearing set for August 22, 1997 was cancelled. On September 10, 1997 the hearing was reset for October 14, 1997. UNITED AUTO did not continue to pursue its motion to strike the affidavits. The only other paper filed in opposition to the motion for summary judgment, besides the affidavit of Dr. Hanson, was a memo of law filed and served by UNITED AUTO during the hearing on October 14, 1997. UNITED AUTO’s memo of law attempted to distinguish the case law which clearly requires PIP benefits to be paid within thirty (30) days.

As mentioned above, UNITED AUTO admitted it insured the motor vehicle RENEUS was occupying (#2) and that PIP benefits are overdue if not paid within 30 days after written notice of a covered loss and of the amount of same (#6). UNITED AUTO had also admitted that all overdue PIP benefits bear interest at the rate of 10% (#13). UNITED AUTO further admitted that it had no report from any medical doctor stating that any of the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary. UNITED AUTO further admitted that it had no report from any chiropractor stating that any of the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary prior to the date of the IME on December 20, 1994. There is no evidence of record whatsoever that there is any opinion from any physician in this case any specifically reviewed treatment was found to be not reasonable, related, or necessary.

III. UNDISPUTED FACTS BASED UPON PROOFS OF THE PARTIES

A. BREAKDOWN OF INDIVIDUAL BILLS AND DATES OF RECEIPT

1. JFK Medical Center – Date of service: 9-10-94

Bill amount: $ 697.00.

PIP benefits: $ 557.60 (80%).

Date bill received on record: November 3, 1994.

Latest date bill became overdue: December 3, 1994 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 159.03.

Per diem Interest: $0.15.

2. Michael F. Kaplan, D.C. – Dates of service: 9-14-94 through 9-22-94

Bill amount: $ 375.00.

PIP benefits: $ 300.00 (80%).

Date bill received on record: December 19, 1994.

Latest date bill became overdue: January 23, 1995 (35 days after receipt of the bill).

Record evidence of bill receipt: Found in Defendant’s answer to Plaintiff’s interrogatory # 8 of Plaintiff’s First Set Of Interrogatories served on October 30, 1996, answered on August 8, 1997, and said answers filed with the Court on August 15, 1997. Also, the bill was produced in response to Plaintiff’s First Request To Produce dated October 3, 1996, with a date-stamp indicating the date received by Defendant. Said Response and attachments including this bill was served on October 25, 1996 and filed by Plaintiff with the Court on July 15, 1997.

Accrued interest @10% through October 14, 1997: $ 81.78.

Per diem Interest: $0.08.

3. Michael F. Kaplan, D.C. – Dates of service: 9-14-94 through 10-4-94

Bill amount: $ 580.00.

PIP benefits: $ 464.00 (80%).

Date bill received on record: December 19, 1994.

Latest date bill became overdue: January 23, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 126.49.

Per diem Interest: $0.13.

4. Larry Rosenbaum, M.D. (Plaza Medical Center) – Date of service: 10-12-94

Bill amount: $ 425.00.

PIP benefits: $ 340.00 (80%).

Date bill received on record: November 1, 1995.

Latest date bill became overdue: December 6, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 63.16.

Per diem Interest: $0.09.

5. Michael F. Kaplan, D.C. – Dates of service: 9-27-94 through 10-13-94

Bill amount: $ 490.00.

PIP benefits: $ 392.00 (80%).

Date bill received on record: December 19, 1994.

Latest date bill became overdue: January 23, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 106.86

Per diem Interest: $0.11.

6. Michael F. Kaplan, D.C. – Dates of service: 10-27-94 through 11-17-94

Bill amount: $ 545.00.

PIP benefits: $ 436.00 (80%).

Date bill received on record: December 19, 1994.

Latest date bill became overdue: January 23, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 118.85

Per diem Interest: $0.12.

7. Michael F. Kaplan, D.C. – Dates of service: 11-1-94 through 11-17-94

Bill amount: $ 175.00

PIP benefits: $ 140.00 (80%).

Date bill received on record: December 19, 1994.

Latest date bill became overdue: January 23, 1995 (35 days after receipt of the bill).

Record evidence of bill receipt: Found in Defendant’s answer to Plaintiff’s interrogatory #8 of Plaintiff’s First Set Of Interrogatories served on October 30, 1996, answered on August 8, 1997, and said answers filed with the Court on August 15, 1997. Also, the bill was produced in response to Plaintiff’s First Request To Produce dated October 3, 1996, with a date-stamp indicating the date received by Defendant. Said Response and attachments including this bill was served on October 25, 1996 and filed by Plaintiff with the Court on July 15, 1997.

Accrued interest @10% through October 14, 1997: $ 38.16.

Per diem Interest: $0.04.

8. Michael F. Kaplan, D.C. – Dates of service: 11-22-94 through 12-14-94

Bill amount: $ 370.00.

PIP benefits: $ 296.00 (80%).

Date bill received on record: January 6, 1995.

Latest date bill became overdue: February 10, 1995 (35 days after receipt of the bill).

Record evidence of bill receipt: Found in Defendant’s answer to interrogatory # 8 of Plaintiff’s First Set Of Interrogatories served on October 30, 1996, answered on August 8, 1997, and said answers filed with the Court on August 15, 1997. Also, the bill was produced in response to Plaintiff’s First Request To Produce dated October 3, 1996, with a date-stamp indicating the date received by Defendant. Said Response and attachments including this bill was served on October 25, 1996 and filed by Plaintiff with the Court on July 15, 1997.

Accrued interest @10% through October 14, 1997: $ 79.23.

Per diem Interest: $0.08.

9. Michael F. Kaplan, D.C. – Dates of service: 12-1-94 through 12-14-94

Bill amount: $ 240.00.

PIP benefits: $ 192.00 (80%).

Date bill received on record: January 6, 1995.

Latest date bill became overdue: February 10, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 51.39.

Per diem Interest: $0.05.

10. Michael F. Kaplan, D.C. – Dates of service: 12-20-94 through 1-19-95

Bill amount: $ 660.00.

PIP benefits: $ 528.00 (80%).

Date bill received on record: February 27, 1995.

Latest date bill became overdue: April 3, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 133.81.

Per diem Interest: $0.14.

11. Michael F. Kaplan, D.C. – Dates of service: 1-11-95 through 2-2-95

Bill amount: $ 600.00.

PIP benefits: $ 480.00 (80%).

Date bill received on record: February 27, 1995.

Latest date bill became overdue: April 3, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 121.64.

Per diem Interest: $0.13.

12. Peak Diagnostics (Scott Tannenbaum, M.D.) – Date of service: 1-26-95

Bill amount: $2,390.00.

PIP benefits: $1,912.00 (80%).

Date bill received on record: February 27, 1995.

Latest date bill became overdue: April 3, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 484.55.

Per diem Interest: $0.52.

13. Preferred Medical Svs (Scott Tannenbaum, M.D.) – Date of service: 1-27-95

Bill amount: $ 480.00.

PIP benefits: $ 384.00 (80%).

Date bill received on record: February 15, 1995.

Latest date bill became overdue: March 22, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 98.58.

Per diem Interest: $0.11.

14. Larry Rosenbaum, M.D. (Plaza Medical Center) – Date of service: 3-15-95

Bill amount: $ 150.00.

PIP benefits: $ 120.00 (80%).

Date bill received on record: November 1, 1995.

Latest date bill became overdue: December 6, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 22.29.

Per diem Interest: $0.03.

15. Michael F. Kaplan, D.C. – Dates of service: 2-7-95 through 2-8-95

Bill amount: $ 260.00.

PIP benefits: $ 208.00 (80%).

Date bill received on record: February 27, 1995.

Latest date bill became overdue: April 3, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 52.71.

Per diem Interest: $0.06.

16. Michael F. Kaplan, D.C. – Dates of service: 2-22-95 through 3-21-95

Bill amount: $ 720.00.

PIP benefits: $ 576.00 (80%).

Date bill received on record: April 12, 1995.

Latest date bill became overdue: May 17, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 139.03.

Per diem Interest: $0.16.

17. Michael F. Kaplan, D.C. – Dates of service: 3-2-95 through 3-21-95

Bill amount: $ 425.00.

PIP benefits: $ 340.00 (80%).

Date bill received on record: April 12, 1995.

Latest date bill became overdue: May 17, 1995 (35 days after receipt of the bill).

Accrued interest @10% through October 14, 1997: $ 82.07.

Per diem Interest: $0.09.

B. SUMMARY BY MEDICAL PROVIDER

Provider Total bills PIP (80%) Total interest

JFK Medical Center $ 697.00 $ 557.60 $ 159.03

Michael Kaplan, D.C. $ 5,440.00 $4,352.00 $1,132.03

Plaza Medical (Rosenbaum) $ 575.00 $ 460.00 $ 85.45

Peak Diagnostics $ 2,390.00 $1,912.00 $ 484.55

Preferred Medical SVS $ 480.00 $ 384.00 $ 98.58

TOTALS UP TO 10-14-97 $ 9,582.00 $7,665.60 $1,959.63

C. UNITED AUTO’S AFFIDAVIT OF DR. HANSON AS IME

The affidavit of Dr. Hanson is the only sworn proof filed by UNITED AUTO to contravene the sworn facts submitted by RENEUS in support of her motion for summary judgment. The affidavit does not address in any way the emergency room treatment by RENEUS at JFK Medical Center. The affidavit does not state that any of the treatment for which RENEUS sought PIP benefits was not reasonable, related, or necessary. In fact, the affidavit appears to be carefully worded to avoid any criticism by Dr. Hanson of Dr. Kaplan’s treatment. The affidavit does not even reveal whether or not Dr. Hanson was aware that Dr. Kaplan continued to treat RENEUS after December 20, 1994. It is not clear whether Dr. Hanson has any knowledge of the treatment rendered to RENEUS after his one and only visit with her.

IV. NO-FAULT LAW MANDATES PAYMENT WITHIN THIRTY DAYS

The statutory provisions at issue in this case are F.S. §627.736(4)(b) and (c). F.S. §627.737(4)(b) provides in its relevant part (emphasis supplied):

(b) 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.

The F.S. §627.736(4)(c) provides that:

It is clear that benefits become over due if not paid within thirty days. An insurer only has thirty days to verify the bills or they become overdue. Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974) (the court stated “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). That same holding was reaffirmed in Fortune Ins. Co. v. Pacheco, 695 So.2d 394 (Fla. 3rd DCA 1997). In Pacheco the Court was asked the following question (at page 394):

CAN A PIP INSURER REQUIRE AN INSURED TO SUBMIT ALL SUPPORTING MEDICAL RECORDS BEFORE THE THIRTY (30)-DAY TIME PERIOD FOR PAYMENT OF THE CLAIM BEGINS TO RUN?

And it stated “We answer the question… with a resounding `no’ ” at page 394. The Court in Pacheco also noted that in Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266 (Fla. 3d DCA 1995) it had, like the First and Fourth Districts (Dunmore, Supra, and Martinez v. Fortune Ins. Co., 684 So.2d 201, 203 (Fla. 4th DCA 1996)), emphasized that there is no statutory provision that tolls the thirty-day period, and that the burden is on the insurer to authenticate the claim within thirty days citing Crooks, 659 So.2d at 1268.

UNITED AUTO argues it had “reasonable proof to establish” it was not responsible for the bills incurred after December 20, 1994 based upon the report of Dr. Hanson. As discussed above, however, that report does not state that any of the treatment of Dr. Kaplan was not reasonable, related, or necessary. One would have to infer that no treatment could ever be necessary after the date of the IME simply on the basis that the IME doctor was of the opinion that no further treatment was necessary at that point based upon one visit with RENEUS. That is not a reasonable inference.

Jones v. State Farm Mut. Auto. Ins. Co., 694 So.2d 165 (Fla. 5th DCA 1997) and Pacheco are the only cases to address the “reasonable proof to establish” language of the PIP statute. In Pacheco the Court explained that a policy clause defining “reasonable proof to establish” did not toll the thirty day period at page 395-396 as follows (emphasis supplied):

The statute does not define “reasonable proof” of loss; Fortune chose to include its own definition of “reasonable proof” in its policy to include all supporting medical records. By so defining the term, Fortune sought to determine when the thirty-day period to pay the claim would begin to run, and thus circumvent long-established case law that once an insurer receives notice of a loss and medical expenses, it must pay within thirty days, unless, pursuant to section 627.736(4)(b), it has obtained reasonable proof to believe that it is not responsible for the payment.

***

Under Fortune’s interpretation of its policy, carriers would have the unilateral power to determine when they could safely declare that they had received reasonable proof of loss, and then allow the thirty-day period to begin running. That view would obliterate the thirty-day period by allowing the insurer to determine when it began.

In Jones the Court explained that an insurer does not have “reasonable proof to establish” that it is not responsible for payment of a PIP claim simply because it has suspicions or reasons for thinking that a claim is not due and owing. The Court in Jones stated at page 166:

…it is apparent that State Farm did not have reasonable proof that it was not responsible for payment of Jones’ surgical bills. Despite State Farm’s heroic effort on appeal to catalogue any fact or circumstance that might engender a suspicion that the knee surgery was not causally related to the accident, the best that even State Farm can say is that “State Farm had `reasonable proof’ to question the relationship of Jones’ left knee surgery….” This does not meet the statutory test of “reasonable proof to establish that the insurer is not responsible for the payment….” Thus, State Farm is exposed to the statutory penalties attendant to an “overdue” claim.

This Court finds that all of the bills became overdue after thirty (30) days of receipt including the bills of Dr. Kaplan for dates of service after February 6, 1995.

V. INSURER MUST FIRST OBTAIN PROPER IME REPORT TO STOP PAYING

Whether UNITED AUTO can properly withhold payment from a treating physician is governed by what has come to be known as “the Woodruff Amendment”. The Woodruff Amendment was first passed in 1987 (Chapter 87-282, Laws of Florida) effective July 4, 1987. It was then repealed effective October 1, 1990 (Chapter 90-248, Laws of Florida). The exact same language was again made law effective October 1, 1992, Chapter 92-318, Laws of Florida.

F.S. §627.736(7)(a) (Effective October 1, 1992) in its relevant part provides:

An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.

(Emphasis supplied).

The only report that UNITED AUTO has is that of Dr. Hanson. The wording of the above statute is clear. It uses the past tense requiring that the insurer first obtain a report stating that the treatment was not reasonable, related or necessary. This wording clearly indicates that the IME physician may only review past treatment at issue. Dr. Hanson’s report does not state in any way that the past treatment of Dr. Kaplan was not reasonable, related or necessary. UNITED AUTO is attempting to use the statute prospectively without any evidence that Dr. Hanson is even aware whether Dr. Kaplan rendered any further treatment to RENEUS after the date of his examination. It is reasonable to require PIP insurers to consider each claim as it is submitted. Each claim should be decided on its own merit. Claims should not be determined based upon blanket opinions that no further treatment would be necessary unless the examiner can state unequivocally that no treatment would ever be needed under any circumstances. UNITED AUTO could have sent the medical bills and reports received after December 20, 1994 to Dr. Hanson for a follow up report and his opinion of the treatment given.

Inquiry into legislative intent may begin only where the statute is ambiguous on its face. See State v. Egan, 287 So.2d 1, 4 (Fla. 1973). The Court must first look to the plain meaning of the words in the statute. At issue here are the use of the words “first obtains” and “was” in the above statute. The issue is whether F.S. §627.736(7)(a) allows for prospective termination of benefits when the IME physician has given no opinion that any past treatment “was not reasonable, related, or necessary”. The plain meaning of F.S. §627.736(7)(a) only allows withholding of payment from a treating physician when the PIP insurer first obtains a report “stating that the treatment was not reasonable, related, or necessary”. This means that the IME physician must find that past treatment “was not reasonable, necessary or related” before payment can be withheld.

The Hanson affidavit cannot be used to deny any of the treatment by Dr. Kaplan prior to February 6, 1995. This was the date chosen by UNITED AUTO to cut off further benefits (Letter of UNITED AUTO adjuster Maria DeSoto attached as exhibit 2 to the Motion for Summary Judgment of RENEUS). The Hanson affidavit also cannot be used to deny payment of any of the medical doctors who are licensed under a different licensing chapter as Dr. Hanson who is a chiropractor. Thus, the only bills that could possibly be affected by the Hanson affidavit are for services of Dr. Kaplan after February 6, 1995 (#’s 15, 16 and 17 above totalling $1,405.00). However, even with these dates of service the Hanson affidavit does not state that the treatment “was not reasonable, related, or necessary”. This Court would have to heap inference upon inference to be able to reach that conclusion. First, the Court would have to infer that the opinion of Dr. Hanson is that RENEUS would never need treatment under any circumstances. Then the Court would have to infer that nothing changed after December 20, 1994 that would have changed that opinion. There is simply no evidence that Dr. Hanson had any knowledge of any facts relating to any need for treatment by RENEUS after December 20, 1994. UNITED AUTO is entitled to any reasonable inferences. However, heaping one unlikely inference upon another inference is not reasonable.

VI. NO SHOWING OF ADMISSIBILITY OR PERSONAL KNOWLEDGE

The Florida Supreme Court in Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla. 1966) observed that statements contained in affidavits on a motion for summary judgment must be such as would be admissible in evidence at the trial. The Supreme Court reversed a District Court of Appeal that reversed entry of summary judgment based on an affidavit in opposition to summary containing inadmissible statements. The affidavit in opposition to summary judgment contained statements about the usual practices of bag boys at a grocery store. It was held that those sort of statements would have been inadmissible at trial as irrelevant to the issues of negligence. Thus, the same statements could not be considered on a motion for summary judgment. The court explained at p. 733:

It is apparent that a jury could not reach a conclusion imposing liability on the petitioner without indulging in the prohibited mental gymnastics of constructing one inference upon another inference in a situation where, admittedly, the initial inference was not justified to the exclusion of all other reasonable inferences.

Rule 1.510(e) of the Florida Rules of Civil Procedure specifically requires that an affidavit in support or opposition of summary judgment meet all of the above requirements. The Rule in its relevant part states:

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

(Emphasis supplied).

In Stolzenberg v. Forte Towers, 430 So.2d 558 (Fla. 3rd DCA 1983) a plaintiff’s affidavit claiming that other people besides lessee used the premises was not sufficient to raise issue of fact as to whether lessor had fully surrendered possession to lessee. The affidavit contained mere conclusions. It did not indicate the source of plaintiff’s information nor the names of any users of the premises. In Carter v. Cessna Finance Corp., 498 So.2d 1319 (Fla. 4th DCA 1987) an affidavit in opposition to motion for summary judgment stated that an aircraft was damaged and allowed to deteriorate while in secured party’s possession. However, it failed to set out a factual basis to support the claim of personal knowledge of deterioration and damage. The affidavit was held insufficient since it did not make assertions based on personal knowledge.

This Court cannot find any competent testimony in the affidavit of Dr. Hanson that creates a material issue of fact with regard to the PIP benefits becoming overdue for services prior to the examination date of December 20, 1994. The Court finds that Dr. Hanson is not legally qualified to render an opinion with respect to the services provided by medical doctors to RENEUS. The Court finds UNITED AUTO did not seek to cut off benefits before February 6, 1995. The Court further finds that the report of Dr. Hanson and his affidavit (seeking to clarify his report three years later) are legally insufficient to cut off benefits after February 6, 1995. Therefore, RENEUS is entitled to summary judgment as to all of her medical bills both before and after February 6, 1995.

VII. WHETHER THE POLICY OF INSURANCE WAS OF RECORD

UNITED AUTO argues that the policy of insurance must be in evidence before this Court can entertain a motion for summary judgment citing Bryan v. USAA Casualty Ins. Co., 673 So.2d 72, 76 (Fla. 4th DCA 1996). However, Bryan does not make any such holding. Much to the contrary, the policies at issue were in evidence in Bryan and the Court stated “[w]e reverse because the express terms of both policies provide uninsured motorist coverage to plaintiffs with no exclusion for injuries suffered while occupying an owned and unlisted vehicle” at page 73. In the instant case, the policy is also of record (notice of filing of RENEUS served July 15, 1997 containing the documents produced by UNITED AUTO) and is referred to at page 5 of the Motion for Summary Judgment of RENEUS. Moreover, no-fault policies are governed by the PIP statute and must be read in conformance with the statute. Comeau v. Safeco Ins. Co., 356 So.2d 790 (Fla. 1978) states that F.S. §627.736(4) becomes “a part of the insurance contract since the parties are presumed to have entered into the contract with reference to the statute” at page 793. The Court finds that the policy is of record and that summary judgment can be determined based upon the policy in the record which was produced by UNITED AUTO.

VIII. ALLEGATIONS OF FELONY AND INTENTIONAL INJURY

UNITED AUTO alleges RENEUS intentionally injured herself and was committing a felony during the accident. UNITED AUTO claims that it may refuse to pay PIP benefits based on authorized exclusions under F.S. §627.736(2) which in its relevant part provides:

Authorized exclusions. — Any insurer may exclude benefits:

(b) To any injured person, if such person’s conduct contributed to his injury under any of the following circumstances:

1. Causing injury to himself intentionally;

2. Being injured while committing a felony.

Whenever an insured is charged with conduct as set forth in subparagraph 2., the 30-day payment provision of paragraph (4)(b) shall be held in abeyance, and the insurer shall withhold payment of any personal injury protection benefits pending the outcome of the case at the trial level. If the charge is nolle prossed or dismissed or the insured is acquitted, the 30-day payment provision shall run from the date the insurer is notified of such action.

There are exclusions in UNITED AUTO’s policy that track the above language which in relevant part provide (pages 7 of 12 and 9 of 12):

This insurance does not apply:

***

to any person, if such person’s conduct contributed to his bodily injury under any of the following circumstances:

(i) causing bodily injury to himself intentionally; or

(ii) while committing a felony…

***

Whenever a person making a claim is charged with committing a felony the Company shall withhold benefits until at the trial level the prosecution makes a formal entry on the record that it will not prosecute the case against the person, the charge is dismissed or the person is acquitted.

However, UNITED AUTO provides no facts that would support applying such exclusions. Despite the extensive discovery conducted over the past two years, UNITED AUTO filed no sworn testimony in opposition to the motion for summary judgment supporting application of these exclusions. There is no evidence whatsoever that RENEUS committed or was ever prosecuted for any violation. There certainly is no evidence of any felony. Obviously, the above statutory and policy provisions envision a situation where an insured is charged with a felony. Moreover, intentional act exclusions do not exclude coverage for injuries more broadly deemed under tort law principles to be consequences flowing from the insured’s intentional acts. Prudential Property and Cas. Ins. Co. v. Swindal, 622 So.2d 467 (Fla. 1993). Thus, in order for UNITED AUTO to prove that injury was caused intentionally, it would have to show that RENEUS specifically intended to hurt herself. Such specific intent cannot be created from a rear-end car accident.

In the statement of the accident signed by RENEUS on December 19, 1995, she claims that a car turned in front of her’s and she had to put on her brakes thereby causing another car behind her to rear-end her car. In her affidavit, RENEUS describes how she had to slow for a car ahead of her which caused the car behind her to rear-end her car. RENEUS denied under oath that she intentionally hurt herself. She denied that she committed a felony. This Court cannot see how the intentional act exclusion or felony exclusion could apply under the facts of this case. UNITED AUTO has provided no proof that there are any facts that support application of the exclusions.

The burden is on the insurer to prove non-coverage once the insured has shown a loss from causes within the policy’s terms. Exhibitor, Inc. v. Nationwide Mut. Fire Ins. Co., 494 So.2d 288 (Fla. 1st DCA 1986) (once forcible entry was shown burden was on insurer loss excepted from policy); Shankle v. VIP Lounge, Inc., 468 So.2d 548 (Fla. 5th DCA 1985) (burden was on insurer to prove non-coverage based upon “care and control” once insured has shown a loss from causes within policy’s terms); Stonewall Ins. Co. v. Emerald Fisheries, Inc., 388 So.2d 1089 (Fla. 3d DCA 1980) (once it was shown that loss resulted from operation of engine with insufficient oil pressure or after it had been overheated, burden was on insurer to show it was excluded by intentional act or negligence). RENEUS has shown that she is entitled to PIP coverage and UNITED AUTO has not negated her proofs. RENEUS has shown that there was no intentional tort or felony. UNITED AUTO has not even attempted to prove any set of facts that would support application of these exclusions.

IX. ALLEGED LATE NOTICE

UNITED AUTO argues that it was materially prejudiced by late notice of the accident. F.S. §627.736(4)(a) in its relevant part provides:

An insurer may require written notice to be given as soon as practicable after an accident involving a motor vehicle…

Rule 4-166.021 of the Florida Administrative Code on definitions of insurance terms provides in its relevant part:

(8) “Notification of a claim” means any notice to an insurer or its agent by a claimant or insured that reasonably apprises the insurer that a loss has occurred.

(9) “Notice of loss” means:

(a) Written notice, such as claim forms, medical bills, medical authorizations or other reasonable evidence of the claim that is ordinarily required of a claimant; or

(b) Any notice by or on behalf of a claimant that reasonably apprises the insurer that a loss has occurred and that the claimant wishes to make a claim under an insurance policy or against a person insured under an insurance policy for such loss.

UNITED AUTO’s policy provides in its relevant part (page 9 of 12):

Notice. In the event of an accident, written notice of the loss must be given to the company or any of its authorized agents as soon as practicable.

Failure to provide timely notice of an accident raises a presumption of prejudice to the insurer which can be rebutted. Macias v. Bankers Ins. Co., 475 So.2d 1216 (Fla. 1985). However, UNITED AUTO has not controverted the facts sworn to by RENEUS that she gave oral notice of the accident within two or three days after the accident to her insurance agent. It is undisputed that the agent received written notice no later than October 5, 1994. This is only twenty-five (25) days after the accident. In Macias the insured had failed to give notice for over one year. RENEUS has established by her sworn testimony that timely notice was given. The facts and circumstances do not support that there was any lack of timely notice or prejudice of any kind to UNITED AUTO. There are no facts brought out by UNITED AUTO to show RENEUS gave late notice or that any alleged late notice caused any prejudice.

X. ALLEGED FAILURE TO COOPERATE

UNITED AUTO argues that it was materially prejudiced by failure of cooperation on the part of RENEUS. F.S. §627.736(6)(e) in its relevant part provides:

Notice to an insurer of the existence of a claim shall not be unreasonably withheld by an insured.

UNITED AUTO’s policy provides in its relevant part (page 9 of 12):

Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. As soon as practicable the person making claim shall give to the Company written proof of claim, under oath if required, which may include full particulars of the nature and extent of the injuries and treatment received and contemplated, and such other information as may assist the Company in determining the amounts due and payable. Such person shall submit to mental or physical examinations at the Company’s expense when and as often as the Company may reasonably require. A copy of the medical report shall be forwarded to such person if requested in writing. If the person unreasonably refuses to submit to an examination the Company will not be liable for subsequent personal injury protection benefits.

In a breach of cooperation clause case, an insurer must show a material failure to cooperate which substantially prejudiced the insurer. Macias, Supra, at page 1218. Again UNITED AUTO fails to bring out any facts that contravene the statements by RENEUS that she cooperated fully. RENEUS was noticed for an IME which she attended on December 20, 1994. This examination took place only approximately seventy (70) days after the accident. That IME doctor did not find that any of the past treatment “was not reasonable, related, or necessary”. Again, UNITED AUTO fails to give any explanation as to what prejudice it has suffered from any alleged lack of cooperation.

XI. STANDARD ON MOTION FOR SUMMARY JUDGMENT

This Court is not unmindful of the standard to be applied in summary judgment hearings. Before it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative, i.e., the non-existence of a genuine issue of material fact. Hall v. Talcott, 191 So.2d 40 (Fla. 1966). However, it is well settled that where a determination of liability depends upon a written instrument and its legal effect, the question is essentially one of law and is ordinarily determinable by the entry of summary judgment. Ball v. Florida Podiatrist Trust, 620 So.2d 1018 (Fla. 1st DCA 1993). Here the determination of liability depends upon the PIP statute, the policy of insurance and their legal effect given the undisputed facts. In this case RENEUS has not only established all material facts necessary to carry her burden but she has also negated each and every one of UNITED AUTO’s affirmative defenses. RENEUS has “proven a negative”. She has also proven that she is entitled to a judgment as a matter of law as required by John K. Brennan Co. v. Central Bank & Trust Co., 164 So.2d 525 (Fla. 2nd DCA 1964). The case law and PIP statute is clear that benefits are overdue if not paid within thirty days and that a PIP insurer may not withhold payment unless it first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.

XII. REQUEST FOR MORE TIME TO FILE OPPOSING AFFIDAVITS

UNITED AUTO ore tenus at the hearing on October 14, 1997 requested more time for affidavits to be filed in opposition to summary judgment. This was the very first request by UNITED AUTO for more time. The hearing had been rescheduled from August 22, 1997 to September 10, 1997. UNITED AUTO has had more than enough time to prepare for the hearing. No proffer was made at the hearing of any affidavits or depositions. No written motion was filed. UNITED AUTO chose to rely upon the affidavit of Dr. Hanson for the hearing and then changed its mind at the last minute.

The 1992 Amendment to the Rules of Civil Procedure requires that opposing affidavits be filed five (5) days in advance of the hearing. Under the earlier rule, affidavits served by mail on a Friday before a hearing on Monday were considered late and did not have to be considered. Independent Fire Insurance Company v. Rogers, 580 So.2d 229 (Fla. 3rd DCA 1991); Von Zamft v. South Florida Water Management District, 489 So.2d 779 (Fla. 2nd DCA 1986); Henry Stiles, Inc. v. Evans, 206 So.2d 65 (Fla. 4th DCA 1968). A judge may in his discretion grant additional time for the filing of affidavits in opposition. Davis v. Lyall and Lyall Veterinarians, 506 So.2d 1072 (Fla. 5th DCA 1987), rev. den., 513 So.2d 1062. However, late filed affidavits do not have to be considered. Jarrett v. Publix, 609 So.2d 154 (Fla. 5th DCA 1993); Hartford Accident Indemnity v. Gillette, 579 So.2d 1059 (Fla. 1st DCA 1982).

This Court finds that this case is ripe for determination. There has been extensive discovery for two years. UNITED AUTO has had more than enough time to respond to the motion for summary judgment filed by RENEUS July 11, 1997 and file whatever depositions or affidavits it wished to file. There is little prospect of any new information useful to UNITED AUTO being turned up. This appears to be a case where UNITED AUTO has no facts to support its defenses and it does not appear that the status quo will improve with time.

WHEREFORE, it is ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is hereby granted. Judgment will be entered in accordance with this order.

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IDORABLE RENEUS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.