11 Fla. L. Weekly Supp. 735a
Insurance — Personal injury protection — Coverage — Medical bills — Unreasonable, unnecessary or unrelated medical expenses — Provider’s motion for directed verdict is granted where testimony of provider’s medical expert which established that medical expenses were reasonable, related and necessary was unrebutted — Testimony of insurer’s litigation adjuster was legally insufficient to refute medical expert’s testimony on reasonableness, relatedness, and necessity of medical expenses — No genuine issue of material fact remains as to reasonable, usual, and customary charges where provider agreed to accept amounts that litigation adjuster testified were reasonable — Attorney’s fee awarded to insured
CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman, Plaintiffs, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-8119 SP 25 (2). May 19, 2004. Lawrence D. King, Judge. Counsel: Kevin W. Whitehead, Downs & Associates, P.A., Coral Gables. Steven F. Coxhead.
ORDER GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT
THIS CAUSE having come to be heard on Plaintiffs’, CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman’s, Motion for Directed Verdict, pursuant to Rule 1.480, Fla.R.Civ.Pro., the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. GRANTED. A directed verdict is proper when evidence and all inference there from, considered in the light most favorable to the nonmoving party, support the movant’s case as a matter of law and there is no evidence to rebut it. State Farm Mutual Automobile Insurance Company v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5th DCA 1999).
2. The Plaintiff met its burden of proof of establishing a prima facie case that the subject medical expenses were reasonable, related and necessary. The Plaintiff presented medical expert witness testimony from Dr. John Pinon, which established that the subject medical expenses were reasonable, related and necessary, and the Defendant failed to substantially impeach Dr. Pinon or present any sufficient countervailing evidence to rebut the Plaintiff’s case. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992). Dr. Pinon was the sole and only medical witness who testified and his testimony was not sufficiently refuted by the Defendant.
3. The Defendant never presented testimony at trial from a doctor or a report relevant to the subject dates of service stating that the medical services rendered by the Plaintiffs were not medically necessary, reasonable or related. See United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998). The testimony from the Defendant’s litigation adjuster, Anthony Gregory, was legally insufficient to rebut or refute the testimony from Dr. Pinon on the issue of whether the subject medical expenses were reasonable, related or necessary. See United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004). Therefore, all outstanding bills remain due and owing at the reduced amount minus the subject $2,000.00 deductible plus statutory interest from 30 days after receipt of each bill up to and including the present date.
4. Mr. Gregory did render an opinion regarding the reasonable, usual and customary charges pertaining to some of the CPT codes, specifically as follows: 97014 billed at $50.00 but $40.00 is a reasonable charge, 98940 billed at $80.00 but $70.00 is a reasonable charge, 97124 billed at $75.00 but $42.00 is a reasonable charge, 99204 billed at $250.00 but $204.00 is a reasonable charge, and 97010 billed at $40.00 but $35.00 is a reasonable charge.
5. The Plaintiff agreed to accept these amounts as reasonable, therefore, there does not exist any genuine issue of material fact pertaining to the charges. The Final Judgment will reflect the amounts determined by Mr. Gregory to be reasonable, usual and customary.
6. Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. See §§ 627.736(8), 627.428(1); see also Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502, 503 (Fla. 1st DCA 1974). It is the incorrect denial of benefits, not the presence of some sinister concept of “wrongfulness,” that generates the basic entitlement to the fees if such denial is incorrect. See Ivey v. Allstate Insurance Co., 774 So. 2d 679, 684 (Fla. 2001). Therefore, the Plaintiffs are entitled to a Final Judgment and an award of reasonable attorney’s fees and costs as the prevailing party. [Editor’s note: Final judgment in this case at 11 Fla. L. Weekly Supp. 735b.]
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