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WITHDRAWAL OF FRAUDULENT PORTION OF CLAIM DOES NOT ELIMINATE FRAUD

Star Casualty Insurance Company appealed a summary final judgment and  attorney fee award entered in favor of Gables Insurance Recovery, Inc.,  as assignee of Star Casualty\'s insured, Ana Maria Correa. Star Casualty  alleges that the trial court erred by granting summary judgment due to  genuine issues of material fact concerning whether Correa\'s medical  bills for diagnostic imaging procedures were medically necessary and  related to the underlying accident for purposes of section 627.736,  Florida Statutes. Additionally, Star Casualty alleged that the trial  court reversibly erred by striking four affirmative defenses from its  amended answer that could have exempted it from liability for the claim.

Star Casualty Insurance Company v. Gables Insurance Recovery, Inc.,  a/a/o Ana Maria Correa, Nos. 3D21-0033, 3D21-0377, Florida Court of  Appeals, Third District (July 20, 2022) FACTS   Correa was involved in a vehicle accident on January 19, 2009 and  sustained injuries. Subsequently, Correa received diagnostic imaging  procedures costing a total of $3,375.00, and Gables, as her assignee,  submitted a claim to the insurer for reimbursement of eighty percent of  the reasonable medical expenses pursuant to section 627.736(1)(a). After  the insurer paid only $400.71 and denied the remainder of the claim,  Gables sued to recover the remaining costs.   Star Casualty proffered an affidavit by Edward A. Dauer, M.D., opining  that the charges were not medically necessary or related to the  accident. This affidavit also noted that three of the imaging procedures  performed on Correa appeared to have been improperly upcoded or  unbundled with other procedures.   Based on Dr. Dauer\'s affidavit, Star Casualty also amended its answer to  add affirmative defenses asserting that it was exempt from paying the  entire because the three charges were fraudulent, upcoded, or unbundled.  Prior to the summary judgment hearing, Gables voluntarily withdrew its  claims for reimbursement of the three charges Star Casualty based its  affirmative defenses on. Gables then moved to strike the defenses from  Star Casualty\'s answer, alleging that the withdrawal of the claims for  those three charges made the corresponding defenses irrelevant and moot.    The trial court, concluding that Dr. Dauer\'s affidavit related solely to  the reasonableness of the charges and did not create any genuine  dispute of material fact as to relatedness and necessity, granted  partial summary judgment on the relatedness and necessity issues and  granted Gables\' motion to strike the affirmative defenses. Star Casualty  then stipulated to the remaining issue of reasonableness, and the court  entered a final judgment and an award of attorney fees and costs in  favor of Gables soon after.