11 Fla. L. Weekly Supp. 747a
Insurance — Personal injury protection — Standing — Assignment — Provider/assignee’s unopposed motion for partial summary judgment on assignment of benefits is granted — Reasonableness of charges — Provider’s motion for summary judgment on reasonableness of charges is granted where provider filed affidavit of billing expert in support of motion; insurer filed motions to continue and notices of taking depositions of provider’s owner, treating physician, records custodian, billing manager, and insured; insurer appeared at hearing without any opposing affidavits or other evidence, and insurer has not provided sufficient reason why court should continue hearing or justification for taking depositions in light of affidavit of billing expert who is only person qualified to testify on issue
ALL COUNTY MEDICAL CENTER, INC. a/a/o Elizeth Gourdine, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-19841 COCE 56. May 24, 2004. Linda R. Pratt, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff. Joshua Meadow, Hengber, Goldstein & Ray, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ASSIGNMENT OF BENEFITS AND REASONABLENESS OF CHARGES AND MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER came before the Court March 30, 2004 on Plaintiff’s Motion for Partial Summary Judgment on Assignment of Benefits and Reasonableness of Charges and Motion for Final Summary Judgment. The facts in this case are as follows:
1. This is an action for personal injury protection (“PIP”) benefits.
2. On May 16, 2003, Defendant filed its Answer and five (5) Affirmative Defenses.
3. On July 16, 2003, Plaintiff filed Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses and Motion for Partial Summary Judgment. After obtaining the Independent Medical Report (“IME”) on the insured, Plaintiff filed an Amended Motion to Strike and Motion for Partial Summary Judgment on August 8, 2003 incorporating the opinions contained in the IME report.
4. On August 15, 2003, the Honorable Louis H. Schiff heard Plaintiff’s motions and entered an order striking Defendant’s first, second and fourth affirmative defenses with fifteen (15) days leave to amend; granting summary judgment in favor of Plaintiff on Defendant’s third affirmative defense ruling that the treatment rendered by the Plaintiff was reasonable, related and medically necessary based upon the IME report; and denying without prejudicePlaintiff’s motion for partial summary judgment on Defendant’s fifth affirmativedefense on the issue of the validity of Plaintiff’s assignment of benefits.
5. On September 26, 2003, this case was transferred from the North Courthouse to the Honorable Linda R. Pratt at the Central Courthouse for a jury trial.
6. On October 30, 2003, Plaintiff filed the affidavit of the insured, Elizabeth Gourdine, who attested to the validity of Plaintiff’s assignment of benefits.
7. On February 26, 2004, Plaintiff filed the affidavit of billing expert William Shawn Carmichael who attested that Plaintiff’s charges were reasonable.
8. Six months passed and Defendant did not amend its affirmative defenses.
9. On March 4, 2004, Plaintiff filed its Motion for Partial Summary Judgment on Assignment of Benefits and Reasonableness of Charges and Motion for Final Summary Judgment and set the motions for hearing on March 30, 2004.
10. On March 25, 2004, Defendant faxed Defendant’s Motion to Continue Plaintiff’s Motion for Summary Judgment to Plaintiff. This motion was notnoticed nor set for hearing.
11. On March 25, 2004, the same day Defendant faxed its Motion to Continue to Plaintiff, Defendant faxed notices of taking depositions for Plaintiff’s Owner, treating physician, records custodian, billing manager and the insured.
There is no dispute that there are only two material facts remaining at issue in the instant case. Defendant has no opposition to Plaintiff’s Motion for Partial Summary Judgment on the Assignment of Benefits so the Court will grant summary judgment in favor of Plaintiff as to the validity of the assignment of benefits. This leaves only one material fact at issue before this Court, the reasonableness of Plaintiff’s charges.
The Court finds Defendant’s notices for deposition and motion to continue, both filed March 25, 2004, untimely. Plaintiff’s affidavits were filed on October 30, 2003 and February 26, 2004 and Plaintiff’s Motion for Summary Judgment was filed March 3, 2004 with hearing set and noticed for March 30, 2004. Defendant appeared before the Court without any opposing affidavits or any other evidence, oral or written, in support of the defense that Plaintiff’s charges were unreasonable.
The Court finds no justification for taking the deposition of Plaintiff’s owner, treating physician, records custodian or the insured. The only material issue remaining before the Court is the reasonableness of Plaintiff’s charges. The only person qualified to testify as to the reasonableness of Plaintiff’s charges, the billing expert, attested by affidavit that Plaintiff’s charges were reasonable. This affidavit was filed February 26, 2004 and attached to Plaintiff’s motion for summary judgment. Defendant has not provided a sufficient reason why the Court should continue this hearing nor justification for taking the deposition of Plaintiff’s billing expert whose affidavit was filed with the Court February 26, 2004.
The Court finds nothing in the Court record nor in front of the Court today opposing Plaintiff’s Motion For Partial Summary Judgment on the reasonableness of Plaintiff’s charges. Plaintiff’s Motion for Summary Judgment was timely filed and contained supporting affidavits on the only material fact at issue in the instant case.
It is therefore ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment on Reasonableness of Charges is granted. Plaintiff’s Motion for Partial Summary Judgment on the Validity of the Assignment of Benefits is granted. Since no material facts remain at issue in this case, Plaintiff’s Motion for Final Summary Judgment is granted.
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