12 Fla. L. Weekly Supp. 116a
Insurance — Personal injury protection — Coverage — Usual and customary charges — Summary judgment — Factual issues — No error in granting summary judgment in favor of medical provider where only affidavit on file at time of hearing on motion for summary judgment was affidavit filed by provider which swore that bill was usual and customary, and insurer filed mere denial unsupported by affidavit, testimony, or other evidence disputing amount of bill — Affidavit of insurer’s adjuster filed 27 days after summary judgment hearing, which did not contain any documentation demonstrating what insurer would consider to be reasonable amount for bill, assert that affiant was licensed physician, or give reason why bill was denied in its entirety, cannot be considered competent substantial evidence — Other affidavit filed by adjuster relates to another claim and suit and cannot be considered competent reasonable proof in case — Motion for rehearing was properly denied where it was based on late affidavit and failed to bring to attention of court any matter overlooked or misunderstood
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MICHAEL ROSE, M.D., a/a/o JOYCE McELWEE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-641 AP & 03-651 AP (Consolidated). L.C. Case No. 01-23078 SP 05. December 7, 2004. An Appeal from the County Court for Miami-Dade County, Loree Schwartz Feiler, Judge. Counsel: Mark A. Gatica, for Appellant. Dean A. Mitchell, Ocala, for Appellee.
(Before ECHARTE, ESPINOSA DENNIS, and MILLER, JJ.)
(ESPINOSA DENNIS, Judge.) We affirm the decision of the lower court which granted the Provider’s, Dr. Michael Rose, motion for summary judgment. The lower court reasoned that his fee of $675.00 was reasonable and consistent within the medical community; the court also correctly awarded him attorney’s fees and costs. Rose had filed his motion for summary judgment supported by an affidavit which swore that his bill was usual and customary in amount. Appellant United Auto filed a mere denial with no supporting documents. At the time of the summary judgment hearing, United Auto had not filed any affidavit, testimony, or other evidence disputing the amount of Rose’s bill. It is not enough for United Auto to merely assert that a genuine issue of material fact exists, it must demonstrate the evidence in the record. See Landers v. Milton, 370 So. 2d 368 (Fla. 1979).
The affidavit filed by adjustor Cruz, disputing the amount of Rose’s bill, was filed 27 days after the summary judgment hearing. Moreover, this affidavit did not contain any documentation demonstrating what United Auto would consider to be a reasonable amount for the bill. No assertion was made that Cruz was a licensed physician, familiar with medically necessary procedures. No reason was given why Dr. Rose’s bill was denied in its entirety. Cruz’ affidavit cannot be considered competent reasonable proof. Fla. R. Civ. P. 1.510 requires that affidavits in opposition to a motion for summary judgment be mailed at least 5 days prior to the day of the hearing, or be delivered at least two days prior to the day of the hearing. The other affidavit filed by adjustor Theresa Rodriguez was in another claim and suit and can not be considered competent reasonable proof in this case.
As there was only one affidavit on file, filed by the Provider, there was no real disputed issue of fact, and summary judgment was properly granted to the Appellee. Dr. Rose’s affidavit supported his case, and United Auto’s late filed affidavit was not competent evidence which a jury would have been able to consider. The trial court ruled on the record that was before it at the time of the hearing, which demonstrated no genuine issue of material fact. That summary judgment should be affirmed. The Florida Supreme Court has held that it is not an abuse of discretion for a trial judge to deny a motion for rehearing of a motion for summary judgment where the affidavit filed in support thereof is too late. See Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980). Additionally, to the extent that United Auto was denying payment of the bill on the ground that the treatment was unreasonable or unnecessary on any ground other than that the charges were too high, United Auto would have had to submit a report from a physician pursuant to sec. 627.736(7), Fla. Stat. (2004).
United Auto’s motion for rehearing also has properly been denied by the lower court. United Auto’s motion for rehearing failed to bring to the attention of the court any matter it had overlooked or misunderstood. The standard of review as to the denial of a motion for rehearing is abuse of discretion. See Willis v. L.W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977). A decision of a trial court has a presumption of correctness and the burden is on the appellant to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). As for the order on attorney’s fees and costs, the court had entered the stipulated agreement of the parties. No error has been shown, therefore, that too should be affirmed.
This matter is AFFIRMED and REMANDED to the lower tribunal for a determination of appellate attorney’s fees. (ECHARTE and MILLER, JJ., concur.)
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