Granada Ins. Co. v. Cereceda, D.C., P.A.
| Decision Date | 31 December 2008 |
| Docket Number | No. 3D07-2000.,3D07-2000. |
| Citation | 997 So.2d 1243 |
| Parties | GRANADA INSURANCE COMPANY, Petitioner, v. MARK A. CERECEDA, D.C., P.A., etc., Respondent. |
| Court | Florida District Court of Appeals |
Christopher J. Bailey, Miami, for petitioner.
Marlene S. Reiss, for respondent.
Before GREEN, SHEPHERD, and CORTIÑAS, JJ.
Denied.
The issue in this second-tier certiorari case is whether the physician report requirement, found in the "withdrawal of benefit" section of Florida's Motor Vehicle No-Fault Law, section 627.736(7)(a), Florida Statutes (2002) (emphasis added), applies as well to a decision of a personal injury protection (PIP) carrier, Granada Insurance Company, to deny a claim or make a partial payment without terminating coverage. The Miami-Dade County Court found that a physician's report was required, and the circuit court appellate division affirmed the decision of the county court per curiam without written opinion. Upon review of the petition before us, I conclude: (1) the decision of the circuit court appellate division constitutes a departure from the essential requirements of law, and (2) the per curiam affirmance issued by the circuit court appellate division does not preclude us from granting relief. Accordingly, I would grant the petition.
On April 24, 2002, Granada insured, Manuel Escalar, was injured in an automobile accident. Dr. Mark Cereceda, a chiropractor, treated Escalar from April 30 through September 3, 2002. Escalar assigned his right to receive insurance benefits to Dr. Cereceda. On August 8, 2002, Dr. Dennis Kogut performed an independent medical examination (IME) on Escalar at the behest of Granada. Dr. Kogut concluded Escalar had reached maximum medical improvement. On September 9, Granada received Dr. Cereceda's bills. On October 21, Dr. Jeffrey Senter performed a peer review of Dr. Cereceda's bills and concluded that many services provided Escalar were not reasonable, related, or necessary (RRN) within the meaning of the PIP statute. On November 27, before any payment was offered or made to him, Dr. Cereceda sued Granada, alleging the insurer had unlawfully "reduced and/or denied payment for medical treatment." On December 2, after the lawsuit was filed, Granada tendered a check to Dr. Cereceda for $2740—the sum for the services Dr. Senter found proper—in full settlement of his claim. Dr. Cereceda refused to accept that amount, stating his bills totaled $11,315. On July 12, 2005, the county court granted summary judgment to Dr. Cereceda for the full amount of his claim on the ground that Granada had not obtained a proper medical report. The court stated:
[F]or an insurance carrier to defend a suit for reduction, withdrawal, or denial of further payments on the grounds of reasonableness, necessity or relationship by use of a medical report (such as a peer review), that obtaining such a report is a condition precedent pursuant to F.S. § 627.736(7)(a).
At the hearing on the motion, Granada argued the physician report requirement of section 627.736(7)(a) does not apply where, as here, the insurer has never withdrawn payment to the provider or contested the authorization to continue treatment. Rather, argued Granada, the applicable statute is section 627.736(4)(b), Florida Statutes (2002), which does not require a physical examination where treatment is denied or the charges submitted for payment are reduced. Upon review of the county court order, the circuit court appellate division affirmed the decision of the county court per curiam without opinion. By a timely filed petition for certiorari, Granada now seeks review in this Court.
On second-tier certiorari review, our review is limited to whether the petitioner was afforded due process rights and whether the circuit court appellate division departed from the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). A departure from the essential requirements of law means the failure to apply the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). ("`[A]pplied the correct law' is synonymous with `observing the essential requirements of law.'"). "[I]n addition to case law dealing with the same issue of law, an interpretation of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review." Kaklamanos, 843 So.2d at 890.
This case involves an interpretation of a statute. In fact, there are two statutory provisions in play in this case: one pertaining to denial or partial payment of a PIP claim, section 627.736(4)(b), and one pertaining to withdrawal from making further payments after having first committed to and making payments to a treating physician, section 627.736(7)(a). Side-by-side, the statutes read:
The Denial or Reduction Provision The Withdrawal Provision
§ 627.736(4)(b), Fla. Stat (2002) § 627.736(7)(a), Fla. Stat.(2002)
(4) BENEFITS; WHEN DUE.—Benefits due (7) MENTAL AND PHYSICAL
from an insurer under ss. 627.730-627.7405 EXAMINATION OF INJURED PERSON
shall be primary, . . and shall be due and REPORTS.—
payable as loss accrues, upon receipt of (a) Whenever the metal or physical condition
reasonable proof of such loss and the amount of an injured persons covered by personal
of expenses and loss incurred which are injury protection is material to any claim that
covered by the policy. has been or may be made for past or future
personal injury protection insurance benefits
. . . . such person shall, upon the request of an
insurer, submit to mental or physical
(b)When an insurer pays only a portion of a examination by a physician or physicians
claim or rejects a claim, the insurer shall
provide at the time of the partial payment or . . .
rejections an itemized specification of each
item that the insurer had reduced, omitted, An insurer may not withdraw payment of a
or declined to pay and any information that treating physician without the consent of the
the insurer desires the claimant to consider injured person covered by the personal
related to the medical necessity of the denied injury protection, unless the insurer first
treatment or to explain the reasonableness of obtains a valid report by a physician
the reduced charge, provided that this shall not licensed under the same chapter as the
limit the introduction of evidence at trial; . . . treating physician whose treatment
However, notwithstanding the fact that written authorization is sought to be withdrawn
notice has been furnished to the insurer, any stating that treatment was not reasonable
payment shall not be deemed overdue when the related, or necessary.
insurer has reasonable proof to establish that
the insurer is not responsible for the payment....
This paragraph does not preclude or limit
the ability of the insurer to assert that the claim
was unrelated, was not medically necessary, or
was unreasonable or that the amount of the
charge was in excess of that permitted under,
or in violation of, subsection (5). Such
assertion by the insurer may be made at any
time, including after payment of the claim or
after the 30-day time period for payment set
forth in this paragraph.
§ 627.736(4)(b) (emphasis added). § 627.736(7)(a) (emphasis added).
Thus displayed, it is plain that the only statutory obligation an insurer has if it either rejects or pays only a portion of a claim is an itemized specification of each item the insurer has reduced, omitted, or declined to pay and such additional information as the insurer desires the claimant to consider. See § 627.736(4)(b). However, if an insurer has commenced payment of a "treating physician" (not just any doctor), and during the course of treatment desires to cease compensating that physician, the insurer must obtain a bona fide and valid medical report stating that the treatment is not RRN. A moment's reflection exhibits the intuitive justification for the distinction. Withdrawal by an insurer of financial support for treatment underway can be a more nuanced, controversial, and disruptive action than a pretreatment coverage denial or partial payment of a particular bill. See Mark K. Delegal & Allison P. Pittman, Florida No-Fault Insurance Reform: A Step in the Right Direction, 29 Fla. St. U. L. Rev. 1031, 1044-45 (2002). In our case, the treatment was long since completed. A plain reading of section 627.736(7)(a) demonstrates it does not apply.
In granting Dr. Cereceda's motion for summary judgment, the county court unfortunately placed substantial reliance on some regrettably imprecise language in an earlier case issued by this Court, United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998). In Viles, as in the instant case, an insured filed suit seeking PIP benefits for injuries sustained in a car accident. Viles' insurance carrier, United Auto, defended on the ground the chiropractic bills in question were fraudulent and not reasonably related to the accident. However, unlike in our case, United Auto paid $1100 to Viles before refusing payment of the remaining bills. Id. at 320. The county court found that Viles was entitled to a full recovery because United Auto failed to obtain a physician's report prior to denying payment. The county court then certified the following question to us:
In any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further...
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