ATTORNEY’S FEES-FINANCIAL RESPONSIBILITY LAW

Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch., 2023 Pa. Super. LEXIS 247 (June 8, 2023). BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E. OPINION BY STEVENS, P.J. Erie Insurance Exchange (“Erie”) appeals from the judgment entered by the Court of Common Pleas of Dauphin County finding in favor of Turnpaugh Chiropractic Health and Wellness Center, P.C. (“Provider”), which sought reimbursement for unpaid bills for Cynthia Zimmerman’s treatment covered by first party benefits under her insurance policy with Erie. The trial court also found Provider was entitled to attorneys’ fees pursuant to various sections of the Motor Vehicle Financial Responsibility Law (“MVFRL”). We vacate the judgment in part and remand for a new trial on Provider’s claim that Erie improperly repriced certain invoices. Erie was not properly notified that Dr. Smith would offer expert testimony as to the billing of Provider’s invoices. Erie was deprived of the opportunity to adequately prepare a meaningful response and rebuttal for the defense. Erie could have presented its own expert to examine the accuracy of the exhibits presented at trial and to question Dr. Smith’s conclusions that Provider had correctly billed Erie. Accordingly, we conclude that a new trial is warranted on the repricing issue as the trial court’s decision to allow Dr. Smith to testify outside the scope of his expert report resulted in prejudice to Erie. We conclude that the trial court erred in awarding Provider attorneys’ fees under Sections 1716 and 1798 as there is no statutory authorization for an award of attorneys’ fees when an insurer invokes the peer review process to challenge its obligation to pay for an insured’s treatment. For the foregoing reasons, we vacate the trial court’s award to Provider for invoices that predated August 31, 2017 and remand for a new trial solely on the repricing issue. We affirm the trial court’s award for Provider’s post-August 31, 2017 invoices, in which the trial court found Ms. Zimmerman’s treatment to be reasonable and necessary, but vacate the award of attorneys’ fees as discussed herein. Judgment affirmed in part with respect to Provider’s post-August 31, 2017 invoices. Judgment vacated in part with respect to invoices that predated August 31, 2017 which Erie allegedly repriced incorrectly as well as the award of attorneys’ fees with respect to Provider’s post-August 31, 2017 invoices. Remand for proceedings consistent with this decision. Jurisdiction relinquished.