13 Fla. L. Weekly Supp. 507b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Where treating physician’s affidavit establishes that insured was injured as result of motor vehicle accident and that treatment was reasonable, related to accident and medically necessary; insured’s coverage under policy is established by insurer’s responses to request for admissions; and insurer filed opposing affidavit of physician which was insufficient, in that affidavit was unsworn and stated that information was accurate to best of affiant’s knowledge; but affidavit of adjuster raised disputed issue of material fact as to amount of deductible; medical provider is entitled to partial summary judgment as to reasonableness, relatedness and necessity of 80% of amount claimed, less applicable deductible no greater than amount adjuster claims is due
UNIVERSAL MEDICAL & REHABILITATION CLINIC, INC. (a/a/o Mary Thame-Haynes), Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-10268 COCE 53. February 28, 2006. Robert W. Lee, Judge. Counsel: Steven Lander, Fort Lauderdale, for Plaintiff. Adolfo A. Podrecca, Fort Lauderdale, for Defendant.
ORDER GRANTING IN PART PLAINTIFF’SMOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 17, 2006 for hearing of the Plaintiff’s Motion for Partial Summary Judgment as to Necessity, Reasonableness, and Relatedness, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background: On July 6, 2005, the Plaintiff filed its complaint seeking unpaid PIP benefits. On August 12, 2005, the Defendant filed its Answer setting forth four defenses, all of which deal with the issue of reasonableness, relatedness, and medical necessity. The Defendant later filed Supplemental Responses to Request for Admissions in which it admitted that it insured the patient for PIP benefits; that the insurance policy was in effect on the date of the accident; and that the insurance policy covers medical bills and lost wages. On December 28, 2005, the Plaintiff filed its Motion for Partial Summary Judgment as to Necessity, Reasonableness, and Relatedness. To support its Motion, the Plaintiff attached the Affidavit of Dr. Lucas Porrello, the treating physician, and Affidavit of Deborah Cazes, the billing manager and records custodian of Plaintiff. The Motion was set for hearing for January 27, 2006, which was later continued to February 7, 2006, and then later continued again to February 17, 2006.
On January 31, 2006, the Defendant filed its Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment. In it, Defendant makes several arguments, including the interesting but wholly incorrect argument that “summary judgment for medical bills can never be entered in a PIP case.” Defendant also filed two affidavits opposing the Motion for Summary Judgment. One is by Isabel Chapman, the assigned adjuster, who conceded that of the $5,431.00 billed by the Plaintiff, the amount of $2,620.00 should have been paid. This calculation includes the amount of $811.00 reduced as part of the deductible, and the amount of $1,345.00 reduced “by the peer review of Dr. Mendelssohn.” The Defendant also includes an “affidavit” of Dr. Mendelssohn which is not notarized. Rather, it includes a statement that “I certify and affirm that: (1) I have read the above report and it is my own, (2) the statements contained herein are true and accurate to the best of my knowledge, and (3) any changes resulting from the processing of this report have been reviewed and approved by me.” The matter was heard before the Court on February 17, 2006.
Conclusions of Law. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510.
The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605, 606 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996). The issue for the Court is whether the pleadings on file and record evidence establish that the medical treatment provided to Mary Thame-Haynes was reasonable, medically necessary, and related to the accident. In this case, the pleadings on file and record evidence submitted herewith demonstrates conclusively that no genuine issue of material fact exists on this issue.
Prima Facie Case. The Plaintiff has a three-prong prima facie showing that must be met for an entitlement to recovery in a personal injury protection suit: (1) an injury resulting from an accident with an automobile; (2) coverage under a policy of insurance that was in full force and effect on the date of the accident; and (3) treatment rendered that was reasonable, related to the accident, and medically necessary. Plaintiff has made a prima facie showing as follows:
i. Injury as a result of a Motor Vehicle Accident
On January 29, 2005, the patient, Mary Thame-Haynes was injured as a result of a motor vehicle accident. Established by Affidavit of Dr. Lucas Porrello.
ii. Coverage under Defendant’s Policy of Insurance
There is no dispute that the patient/assignor, Mary Thame-Haynes was covered under a policy of insurance that was in full force and effect on the date of the accident. Established by Defendant’s Supplemental Responses to Request for Admissions.
iii. Plaintiff’s services were reasonable, related to the motor vehicle accident of January 29, 2005 and medically necessary.
The Plaintiff has filed the affidavit of the treating doctor, Dr. Lucas Porrello, attesting to the fact that the treatment rendered for dates of service from February 25, 2005 through May 17, 2005 was in fact reasonable, related to the accident and medically necessary. See Affidavit of Dr. Lucas Porrello.
Plaintiff has an assignment of benefits and incurred $9,836.00 in medical expenses for treatment rendered to Mary Thame-Haynes for dates of service from February 25, 2005 through to May 17, 2005 for injuries arising from an automobile accident. Said amount was billed and submitted to United Automobile in a timely manner. See Affidavit of Deborah Cazes.
As such, Plaintiff has made its prima facie showing of all the elements necessary to support a claim for personal injury protection benefits.
In response to the Plaintiff’s Motion, the Defendant has filed what purports to be the affidavit of Dr. Martin G. Mendelssohn. The Court, however, specifically rejects the “affidavit” of Dr. Mendelssohn as it was not sworn. See Jackson v. State, 881 So.2d 666, 667-68 (Fla. 5th DCA 2004) (when a statute requires an affidavit, attempt to use verification procedure is deficient); County Line Chiropractic Center, Inc. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 191 (Broward Cty. Ct. 2005) (same). Moreover, even if properly sworn, Dr. Mendelssohn’s affidavit is additionally legally insufficient in that he qualifies his statement as being “accurate to the best of my knowledge.” This is directly contrary to Florida requirements that an affidavit “be stated in a positive, not qualified, manner.” 1 Fla. Jur. 2d Acknowledgments §37 (2004). See also Hahn v. Frederick, 66 So.2d 823, 825 (Fla. 1953) (affidavit executed “to the best of my knowledge and belief” is legally insufficient).
Finally, the Court considers Isabel Chapman’s affidavit that the amount due should be reduced $811.00 due to the policy deductible. The Court finds that this is sufficient to raise a disputed material fact of the deductible amount, unless the Plaintiff concedes this amount. Therefore, the Court finds that the Plaintiff is entitled to a partial summary judgment as to reasonableness, relatedness, and medical necessity of 80% of the amount of $5,431.00, less any applicable deductible no greater than $811.00. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is GRANTED as set forth hereinabove.