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Derius v. Allstate Indemnity Co.6/10/1998
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Paul O. Moyle, Judge; L.T. Case No. MC-94-12188 RB.
The county court has certified two questions to this court pursuant to Florida Rule of Appellate Procedure 9.160(d), which we rephrase as follows:
TO RECOVER MEDICAL BENEFITS IN A LAWSUIT UNDER SECTION 627.736, FLORIDA STATUTES (SUPP. 1994), MUST THE PLAINTIFF PROVE BY THE GREATER WEIGHT OF THE EVIDENCE THAT THE EXPENSES SOUGHT ARE BOTH REASONABLE AND FOR NECESSARY MEDICAL SERVICES?
IN AN ACTION FOR PIP BENEFITS, WHERE A TRIAL COURT CHARGES THE JURY USING THE LANGUAGE OF SECTION 627.736(1)(a), MUST THE COURT FURTHER DEFINE THE TERM "NECESSARY" AS USED IN THE STATUTE?
We have accepted jurisdiction pursuant to Rules 9.030(b)(4)(A) and 9.160(d). We answer the first question in the affirmative and the second in the negative.
Appellant, Rose Marie Derius, was a passenger in a car driven by her husband, which was rear-ended on February 5, 1994. That day, she was treated at a hospital emergency room and released. Her chiropractor diagnosed a soft tissue injury in her neck and began treating her on March 2, 1994.
Allstate, Derius' insurer under the Florida Motor Vehicle No-Fault Law, initially paid for the chiropractic treatments. After three months, Allstate hired another chiropractor to perform a physical examination on Derius. After the examination, the doctor reported his Conclusions to Allstate as follows:
ased on my examination today, I am unable to establish the presence of any significant clinical entity which would require continued chiropractic care. In addition, subjectively the patient states that she has not improved despite three months of 3-times per week chiropractic care. Due to the lack of any clinical support for her subjective complaints, as well as the existence of the functional overlay and the reported lack of subjective progress, I am not recommending your consideration of any additional chiropractic care.
As a result of this recommendation, Allstate notified Derius that it would not pay for any chiropractic treatment after June 7, 1994. Derius continued to treat with her chiropractor until September, 1994.
Derius filed suit under the no-fault statute in the county court seeking, inter alia, to recover for her chiropractic treatments under section 627.736(1)(a), Florida Statutes (Supp. 1994). Another issue developed at trial was whether Allstate should have paid $75 for an interim examination, instead of $68. In its instructions, the trial court framed the issues for the jury:
The issues for your determination on the claims of the Plaintiff, Rose Marie Derius, against Defendant, Allstate Indemnity Company, are whether any of the chiropractic treatment after June 7, 1994 was necessary and, if so, the total reasonable charges for said chiropractic care.
One additional issue for your determination is what is the total reasonable charge for the interim examination of May 11, 1994.
If the greater weight of the evidence does not support the claim of Plaintiff, Rose Marie Derius, then your verdict should be for Defendant, Allstate Indemnity Company.
However, if the greater weight of the evidence does support the claim of Plaintiff, Rose Marie Derius, then your verdict should be for Plaintiff, Rose Marie Derius, and against Defendant, Allstate Indemnity Company, for the total amount of those reasonable and necessary chiropractic expenses incurred after June 7, 1994 and for the interim examination dated May 11, 1994.
After a lengthy trial, the jury returned a verdict for Allstat
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