12 Fla. L. Weekly Supp. 891a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary services — Where medical provider filed affidavit attesting that office consultation he provided was medically necessary and related to automobile accident and that charge was reasonable and consistent charge within medical community, insurer filed opposing affidavit from claims representative stating charge was not reasonable per software program used to assist insurer in determining reasonableness of charges but no evidence that service was not necessary and related, and depositions of claims representative and adjuster could offer nothing to allow court to conclude results of software program would be admissible evidence, final summary judgment is granted in favor of providerAFFIRMED at14 Fla. L. Weekly Supp. 322a
PETER GODLESKI, M.D., P.A. d/b/a CENTRAL FLORIDA ORTHOPAEDIC & NEUROLOGY SPECIALISTS, as assignee of Ivette Rodriguez, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit for Seminole County. Case No. 03-SC-2749. June 10, 2005. John R. Sloop, Judge. Counsel: Glenn Klausman, Altamonte Springs, and Roy J. Smith, Weiss Legal Group, P.A., Maitland, for Plaintiff. George Milev, Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
This cause came before the Court on the Plaintiff’s Motion For Final Summary Judgment. The defendant previously withdrew all affirmative defenses, except the defense the medical bill at issue was not reasonable in amount, related to the accident, or for necessary medical treatment.
The plaintiff, a medical doctor and board certified orthopaedic surgeon, filed an affidavit in support of the plaintiff’s motion for summary judgment, attesting to the fact he is a board certified orthopaedic surgeon in Orlando, Florida, and he provided the service of an office consultation to Ms. Rodriguez on April 14, 2003. The affidavit attests the office consultation was medically necessary and related to the automobile accident of January 7, 2003. The affidavit states based upon Dr. Godleski’s experience in practicing medicine, the amount charged for the office consultation provided was reasonable and consistent charge within the medical community.
Rule 1.510(e), Florida Rules of Civil Procedure, states the requirements of an affidavit related to a motion for summary judgment as follows:
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
The Court finds from the record, which includes the deposition of Dr. Godleski, that Dr. Godleski is competent to testify to the matters in his affidavit and would be capable of testifying at trial to those same matters. The affidavit was sufficient to shift the burden to the defendant to present an opposing affidavit or evidence the bills at issue were not reasonable, necessary, or related to the accident at issue.
The defendant filed an affidavit from the insurer’s medical claims representative, Doug Lacey, stating based upon his personal knowledge: “The charges submitted by Plaintiff were not reasonable per Defendant’s software program utilized in assisting Defendant for determination of reasonableness of charges.”
The defendant presented no competent evidence the bills at issue were not necessary or related to the accident at issue. Based upon the record before the court, the remaining question is whether the defendant met the burden to overcome the entry of final summary judgment on the issue whether the office consultation bill at issue was reasonable in amount.
Progressive Express cited the court to the depositions of Doug Lacey and Cheryl Shaw.1 From review of the deposition testimony referred to the court by the parties, neither Doug Lacey nor Cheryl Shaw could offer anything that would allow the Court to conclude the results of the insurer’s “software program” utilized in determining the bill at issue would be admissible evidence. The insurer has failed to meet its burden in opposition to the plaintiff’s motion for summary judgment.
The Plaintiff’s Motion For Final Summary Judgment is granted. The Court reserves jurisdiction as to the issues of attorney fees, costs, and interest.
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1Immediately prior to the hearing in this case, an identical issue was before the court in Friedman v. Progressive Express Ins. Co., Case No. 03-SC-2583 [11 Fla. L. Weekly Supp. 582a], and the parties had the same counsel and cited the court to the deposition of Cheryl Shaw, the insurer’s adjuster.
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