17 Fla. L. Weekly Supp. 980b
Online Reference: FLWSUPP 1710PORR
Insurance — Personal injury protection — Coverage — Medical expenses — Denial — Valid medical report — Error to strike peer review report on ground that it was untimely and was based on treating physician’s records rather than on independent medical examination — Florida law does not require insurer to file peer review within thirty days from date of notice of loss to establish or contest reasonable, related, and necessity of PIP claim; instead thirty-day period is provision for insurer to avoid interest and attorney’s fees
Cert. denied. 35 Fla. L. Weekly D2280b (Porras v. United Auto. Ins. Co., 3D10-2499, 10-13-2010)
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. JUAN PORRAS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-211 AP. L.T. No. 06-015023 CC 05. June 24, 2010. On Appeal from the County Court for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Michael J. Neimand, General Counsel of United Automobile Insurance Company, for Appellant. Virginia M. Best, Law Offices of Lopez & Best, for Appellee.
(Before LOPEZ, WARD, and EIG, JJ.)
(LOPEZ, Judge.) The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Juan Porras (“Insured”). In the underlying action, Insured sued Insurer for failure to pay Personal Injury Protection (“PIP”) benefits. An issue in dispute was whether the treatment was reasonable, related, and medically necessary (“RRN”).
In opposition to the Insured’s motion for summary judgment of the issue of RRN, the Insurer filed the affidavit of Joel Kallan, MD, to support its defense that some of the treatment rendered in this case was not reasonable, related, and necessary. Dr. Kallan’s affidavit referred to his peer review report regarding the treating physician’s records. Insured filed a Motion to Strike the Peer Review of Dr. Joel Kallan, which was granted by the trial court on March 22, 2007 and the Order was entered on May 29, 2007. The motion to strike alleged that the peer review was “untimely,” that Dr. Kallan analyzed bills from medical providers who are licensed under a different chapter of the Florida Statutes, and that the peer review is not a “valid report” under Section 627.736(7)(a) because the “peer review at issue was obtained by Defendant after the subject bills were overdue during the course of litigation.” Further, the motion to strike alleged that the peer review is invalid because it is not factually supported by a physical examination from an IME physician.
Although the Insured argued several grounds for striking the peer review in its written motion, at the hearing Insured only argued that the peer review was “late” because it was filed “well after the 30 day period allowed under the Statute.” At the hearing, the trial court did not review the peer review affidavit or report to determine its sufficiency, nor did the court grant the opportunity for the Insurer to cure any deficiency in the peer review affidavit.
A motion for summary judgment is appropriate when the moving party has shown that there are no issues of material fact, and that all that is left is a question of law. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Pennco, Inc. v. Meritor Sav., 617 So. 2d 739, 739 (Fla. 2d DCA 1993). At the hearing on the motion for summary judgment, the trial court declined to consider Dr. Kallan’s affidavit and peer review report because it was previously stricken.
A key issue on appeal is whether the trial court erred in granting summary judgment in favor of the Provider where the Insurer’s peer review was not considered, because it was argued to be “untimely” and based on the treating physician’s records rather than on an independent medical examination (“IME”).
As to the issue of whether the peer review was “untimely,” Florida law is devoid of any requirement that an insurance company must file a peer review within 30 days from the date of the notice of loss to establish or contest the reasonable, related, and necessity of a PIP claim. Both United Automobile Ins. Co. v. Rodriguez and Allstate Indemnity Co. v. Derius have held that the PIP statute does not require an insurer to obtain a written report as to the reasonableness of the treatment within thirty days of notice of the bill to contest payment. 808 So. 2d 82, 84-5 (Fla. 2001); 773 So. 2d 1190, 1191 (Fla. 4th DCA 2000). The thirty day period is only a provision for an insurer to avoid interest and attorney fees, not to establish reasonable proof of a PIP claim. Rodriguez, 808 So. 2d at 87.
The Third District Court of Appeal has clarified the law as to the validity of a peer review report. In United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So. 3d 60, 66-7, (Fla. 3d DCA 2009), the Third District Court stated, in pertinent part:
[a]lthough Bermudez, in dicta, suggests that Viles [United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998)] also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. “The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.” Viles, 726 So. 2d at 321 (emphasis added). . . .
In United Automobile Insurance Co. v. Metropolitan Injury & Rehabilitation Center, 16 So. 3d 897, 900 (Fla. 3d DCA 2009). The Third District Court of Appeal stated in pertinent part:
[i]n construing whether this was a “valid report” under the statute, we found that a “valid report” for the withdrawal of PIP benefits does not have to be based upon a physical examination conducted by the actual physician preparing the report. Instead, we held that, under section 627.736(7)(a), a “valid report” for the withdrawal of PIP benefits “may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.” Bermudez, at 1215 (emphasis added).[FN3] In other words, the physician preparing the report does not have to personally examine the insured. He or she may base the report on another physician’s examination whether an IME or an examination conducted by the treating physician.
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We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, an IME had been performed, Bermudez does not stand for the proposition that an IME is required in order for a report to be a “valid report.”
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[FN3]The holding in Bermudez was, in part, based on the legislative history of the statute. See Senate Staff Analysis and Economic Impact Statement, Senate Bill 1092 (Fla. 2001), which supports our determination here.
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 § 627.428(1) is DENIED. (WARD and EIG, JJ., concur.)