UNITED AUTOMOBILE INSURANCE COMPANY

v.

QUALITY MEDICAL GROUP, INC., A/A/O MELISSA ANN DOC

An Appeal froré-the County Court. for M.iami~—Dade, Florida, Brio Hendon. Michael J. Neitilend, Bsq., for Appellant. r it/IichaelD.Kaii1lat1, Esq. for Appoliee. _ "' Before GiSBLA=cnnoonmz BLY, VICTORIA PLATZBR, LAWRENCE scliwntrrz, JI. Pen CURIAM ‘ __ Defenddnt below, United Automobile Insura1tcel(=3ontpany("United”),;. appesls a final judgtnentin faifor of Quality Medical Group (“Quality Medicsl”) for PIP benefits. This own, , having read thébriefs and considered the atguments presented, is fully advised m the premises and finds as follows.“ _ . ‘ In response to Quality Medicai’s complaint for PIP benefits, United, filed an Answer to the Complaint denying that the treatment rendered to the insured was reasonab1e,.re1eted and ' necessary (“RIQN”) to the reported automobile accident; The Answer specifically raised the affirmative defense that the insured was not entitled to PIP benefits because she failed to attend the examinatioil under oath (“BUG”), -which was e condition precedent to obtaininghenefits. . The-teafier, Uniied filed a motion for summary judgment on its EUO afifirmative defense. The motion for suxxlmary judgment was supported by an affidavit of the litigation adjuster attesting that United requested and scheduled the insured to submit-to an BUO on a sjicclfied date. In opposition, Quality Medical filed the in.eur'ed’s affidavit attesting that alter receiving the BUO notice, the insured notified United by telephone that she would be out of town on the scheduled date and requested an alternate date to attend the BUO. According to United, it did not have . i; - ‘ I t.

F.

7&9“ 4<V;v\.q_ - I I'-»-_- ‘Q’? “'/¢Y"¢‘-i=lan£a.~;\¢.'._;,:t’R - II\ @'§ vs. -_ QUALITYMEDICAL GROUP, 11~1c., alalo ?/f /;""w” MBLISSAANQIDOCTOR, ' W 6,, J2, )⁰” . Appellee. ' . _ " - ) ‘Sis ' I l l [*2] I‘ |€ -:ll it i! it .____._ -..m;..-.__. ._.._._._; ‘I 1. Ti _-.-»-.-i.__.__.....,._.. I _.|_.-rr L i ll r ".. -.1. h-111.‘?-.l.\..-1 4' y s ; I " " ' 1-‘ "" 4- " ‘ . '..r"¢- :" ' ' - . , i record ofthe insured’s phone call. Thereafter, Quality Medical filed a cross-motion for summary judgment _on U1§_ited’s BUO aiiimiative defense. At a hearing on Quality Medicare motion, the trial court foundthat the insured’s proffered reason for not appearing at the EUO.was reasonable and granted Quglity Medical’s motion for stimmaryjudgment; l ‘ ' P . r. . .~ Quality Medical also filed a motion for summary on the ground that all of the treatment rendered to the insuredwas RRN. In support thereof, Qualify Medical filed me. affidavit of the treating physiciqm. Inzoppositiou, United filed the affidavit of the doctor who performed the independent medical examination (IME) stating that treatment after February 2f], 2006 was not RRN. Unitcd’sldoctor also submitted a peer review opining that some of the treatment prior to February 27, 2006 was not RRN. The trial court found that theIMB contradicted.the peer review and granted Quplity Medical xriolion for summary judgment as to RRN through February 2'1, 2006. The trial iccurt further held that a question offact existed as to all treatment after February 27, 2006. However, Quality Modicul withdrew its claims for service efier February 27, 2006. Thereafter, the ,t1ial court entered final judgment in favor of Quality Medical. This appeal follows. . ‘ ' . A_ . , i: I 'United’s;,_ first issue on appeal is whether the trial court erred in granting Quality Medical‘s motion for summary judgment as to the BUO affirmative defense. pnited‘s second issue on appealjs whether the trial court erred ingranting summaryjudgmentin favor ofQuality Medical as to based on opinions pronounced in the peer review and IMB reports. \ . _ ' ' ' ~ . The standard ofreview for summaryjudgment is de nova and requires this court to view the evidence ingthc light most -favorable to the non-moving party. Sierra v. Skgvin, .767 S0. 2d 524, 525 (Fla. lid DCA 2000). summery judgment is propfer if there exists no genuine issue of material fact and the moving petty is entitled to judgment es a matter of law. Volusia County v. Aberdeen at OriprondBeach, L.P., 760 So. 2d 126,130 (_1=1_a. 2000). ; . ; ‘ - With reéard to the first issue on appeal, because the ‘evidence presentcdiat the summary judgment hesring was conflicting as to whether the insured‘ contacted United to reschedule the EUO, a' question of fact was presented for resolution by'thot1i'er of. fact. The determination of whether Unitedjreceivcd noticeof-the insm'ed's request to reschedule and whether the insured’s rationale for failing to attend the EUO was reasonable raises a genuine issue ofmaterial fact. As such, the entry ofit summaryjudgment as to this issue was inappropriate. See ge' rally, Furch v. Wal-Mart Stores, Inc., 988 So.‘ 2d 687 (Fla. 1stDCA'2008). Custer Medical distiller, 2010 WL 4340809 (Fla. ljlov. 4,-2010); Lombra v. United Auto. Ins; Co., 8 Fla. L. Weekly Supp. 542, 542 (Fla. llth Cir. Qt. June 19,2001). ' ' ' ' ' .; . ’- , \ As to U_nited’s second issue on appeal, we agree, the trial court's mlin'g was improper. Specifically, the trial court inferred thut becatise United’s report indicstegl flip,t__no_fi;1_'ti_1er treatment was ' ecessary after February 27, 2006, that ‘all prior treatment iinust have been necessary. On tits basis, the trial court held that the IME ‘contradicted the peer review. This was not proper on a,motion for summeryjudgmentin which the evidence must be viewed inthe light most favorableto the non-moving party. Termqfirroosh v. Wash, 952 So. 2d 1247, 1249 (Fla. 5th DCA 2007); See also, Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985); Sierra v. Shevin, 767 So. 2d S24 (Phi. 3d DCA 2000). Thus, the trial oourt’s dttttiiuiirlation that the peer review was l -4-‘w“ i | i i I1 ! [*3] I | Iv i ? ._.__,_._,7__ x> *1 ‘L I I- : ..\.\....2..... .. , “ ______ __ =.| 5. not valid becauke it was in conflict with the IME report was i11approprIate. Ah such, the peer WOT‘ crfiflifld wgenuine issue ofmaterial fact as to the RRN ofthe ins11red’s treatment such that - summary judgment should not have been entered; United Automobile Ins. Co., v. Restrepo, 17 Fla. L.We/ekly Supp. 162a (Fla. ,1 1"‘ Cir. App. .c¢. Dec. 14, 2009). Accordingly, it is hereby, ORDBRI‘-31)" auci_'ADJUDGBD that-thefinaljudgmentis REVERSED and REMANDED. \ . I norm and ORDERED. ' - - ~;i R I I I I f I \ | mzmamm W azmwsmn - - -- ——' fiD ‘AND ‘T⁰ I m L G x I I