12 Fla. L. Weekly Supp. 959a
Insurance — Personal injury protection — Coverage — Medical expenses — Reduction — Reasonableness — Medical provider’s motion for summary judgment is denied where issue of reasonableness of usual and customary reduction remains in dispute
KENNETH B. HAWTHORNE, M.D., AS ASSIGNEE OF MEREDITH LEY, ETC., ET AL., Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Consolidated Under Case No. 2002-13210-CODL, Division 71. June 30, 2005. Shirley A. Green, Judge. Counsel: Steven R. Robinson, Cameron Hodges Coleman LaPointe Wright, P.A., Daytona Beach, for Plaintiff. Kimberly Simoes.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the court on the Plaintiff’s Motion for Summary Judgment, the court having considered same, having heard the argument from the attorneys for the parties, and being otherwise fully advised in the premises, finds that
The Plaintiff submitted medical bills for two patients to the Defendant, insurer. Defendant reduced two line items claiming that they exceeded the usual and customary charges for the Central Florida area. Plaintiff contends that these charges are reasonable and that there is no issue of material fact as to the reasonableness of the medical charges.
The Defendant contends that there is still a material issue of fact and that Plaintiff has failed in their proof.
In order to prevail in a Motion for Summary Judgment, the burden of the moving party is to prove the non-existence of genuine triable issues. This burden is not shifted to the opposing party until the movant has successfully met his burden. If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. The merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment (see, Nard, Inc. v. Devito Contr. & Supply, Inc., 769 So. 2d 1138 (Fla. 2nd DCA 2000).
Further in, Gardner v. Sabal Point Properties, 616 So. 2d 1111 (Fla. 5th DCA 1993), the Fifth DCA held that summary judgment is inappropriate unless the facts of the case are so crystallized that disposition of questions of law are all that remain for the trial court to determine. In this case, the issue of the reasonableness of the amount charged is not crystallized but remains very much in dispute.
Finally, in Miami Health Care Therapy Center v. United Automobile Insurance, 12 Fla. L. Weekly Supp. 96a (11th Jud. Cir. 2004), the Plaintiff moved for summary judgment for Defendant’s failure to comply with Fla. Stat. 627.736. The court ruled that entitlement [of benefits] was proper for summary judgment, however the reduction of the medical expenses [for usual and customary and reasonableness] remains a genuine issue of material fact for a jury [trier of fact]. This court concurs with that observation and finds that the issue of reasonableness of the usual and customary reduction is an issue of material fact that survives summary judgment.
Therefore, pursuant to the foregoing, it is
ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is hereby DENIED.
* * *
