12 Fla. L. Weekly Supp. 632b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 918a
Insurance — Personal injury protection — Fraud — Summary judgment — Factual issues — Error to enter summary judgment in favor of medical provider where insurer alleges fraudulent billing, affidavit of insurer’s representative states that insured confirmed during examination under oath that she did not receive same treatments on consecutive days, and billing records show instances of billing for same services on consecutive days — Error to enter summary judgment in favor of provider on issue of usual and customary charges — Illegible medical fees chart filed by provider without any explanation as to how provider used chart to arrive at his fees was not sufficient to shift burden to insurer to come forward with countering evidence — Attorney’s fees — Prevailing party — Where insurer did not appeal all issues addressed in summary judgment order, matter is remanded to trial court to determine which party prevailed below consistent with appellate proceedings
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. REGINALD A. BOTTARI, D.C., P.A., a/a/o MARIA E. CABRERA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-121 AP & 04-295 AP. Consolidated. L.T. Case No. 03-5908 SP 25. April 7, 2005. An appeal from the County Court for Miami-Dade County, the Honorable Mercedes A. Bach presiding. Counsel: Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Stuart L. Koenigsberg, Stuart L. Koenigsberg, P.A., for Appellee.
WITHDRAWN. 12 Fla. L. Weekly Supp. 918a
(Before ARTHUR L. ROTHENBERG, ELLEN L. LEESFIELD and MAYNARD A. GROSS, JJ.)
(ROTHENBERG, J.) On November 15, 2001, the insured, Maria E. Cabrera (“Cabrera”), allegedly sustained injuries as a result of a car accident. Cabrera was insured by the Appellant, United Automobile Insurance Co. (“United”). Cabrera sought treatment from the Appellee, Reginal A. Bottari, D.C., P.A. (“Bottari”). Bottari submitted claims for PIP benefits which United denied. On June 6, 2003, Bottari filed a complaint for PIP benefits.
On July 15, 2003, United filed its Answer and Affirmative Defenses. In paragraph four, United denied that the bills submitted by Bottari were reasonable, related or necessary. In Paragraph nine, United alleged that Bottari
submitted fraudulent bills by billing for certain treatments every time that the claimant was seen at the clinic despite the fact that the claimant [Cabrera] denies receiving the same treatment every day. The Plaintiff materially misrepresented the amount of the services at issue and intended for the Defendant to rely upon such misrepresentation to its detriment. At the very least, the plaintiff violated the fiduciary relationship between plaintiff and defendant by materially misrepresenting the value of the said services to the detriment and damage of the defendant.
(R: 000020). United demanded trial by jury. Bottari filed its Plaintiff’s Motion for Summary Judgment. Bottari alleged summary judgment was proper due to the lack of genuine issues of material fact and as a matter of law.
United filed a Verified Response in Opposition to Plaintiff’s Motion for Summary Judgment to which it attached an affidavit of Tracy Chase, a United corporate representative. United contended that there was an issue as to “fraud for billing for the same treatment every day when the claimant stated that the therapy rendered was different on different days.”1 United maintained that the charges submitted by Bottari were above the usual and customary amount. In the affidavit, Ms. Chase made the following statement: “In addition[,] I have reviewed the charges in this matter and find that the some [sic] are above the usual and customary charges for the service and area at issue. There are also issues regarding fraudulent billing.”
United next filed a Motion for Re-Hearing and Relief from Order Granting Plaintiff’s Motion for Summary Judgment. United raised the same issues as before. Attached was a third version of Ms. Chase’s affidavit. In this new affidavit, Ms. Chase goes on at length about an examination under oath (“EUO”) to which Cabrera submitted. Ms. Chase referred the trial court to specific pages where Cabrera declares that she did not receive the same treatments on consecutive days. The affidavit did not address the issue of the reasonableness or medical necessity of the treatments received by Cabrera.
Within the third affidavit, Chase discussed the issues of treatment rendered by unlicensed persons. Chase also raised the issue of the charges for the services rendered exceeding the usual and customary charges for the services rendered in this area. Chase did not, however, declare or provide proof of what those usual and customary charges would consist of in this area. Finally, Chase addressed the deductible issue.
The trial court entered its Final Summary Judgement [sic] in which Bottari was awarded $6,692.00, which was 80% of the original amount owed, $10,865.00, less the $2,000 deductible. Interest, costs, and attorney’s fees were also awarded to Bottari. On the same day, the trial court entered an Order Denying Defendant’s Motion for Rehearing. Also on the same day, the trial court also entered an Order Granting Plaintiff’s Motion for Summary Judgment.
United filed its notice of appeal taking issue with the orders filed by the trial court on February 20, 2004. It should be noted, however, that United only attached the Final Summary Judgement [sic] as its exhibit.
United contends that the trial court erred by entering summary judgment in favor of Bottari: (1) when there were questions of material fact regarding the reasonableness of the charges for medical treatments; and, (2) when United alleged fraudulent billing by Bottari. United did not address, and therefore waives, the issue of the medically necessary and reasonable treatment.
In response to this appeal, Bottari included two affidavits which were considered by the trial court. In his affidavit, Bottari declared that the care he gave Cabrera was medically reasonable, necessary, and related to the injuries she sustained in the accident. Bottari also declared that his charges were compared with a data base compiled by a company called Medi-Code of Florida and based on his comparisons, his charges were in fact usual and customary within Miami-Dade. Bottari did not include an explanation as to how he used the chart. Attached to the affidavit, Bottari included a copy of a document entitled, Medical Fees in the United States (Ax: 98-102). This was a remarkably illegible document. It was difficult to compare the numbers there, with the amounts charged by Bottari.
An affidavit by Gina Bottari was also submitted by Bottari. She also declared that the charges were usual and customary. She also included an illegible copy of Medical Fees in the United States but did not provide an explanation as to she used the chart.
Standard of Review
In Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), the Florida Supreme Court held that: “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Regarding appeals of a summary judgment, the standard of review is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.”) (citation omitted); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) (“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. If the “slightest doubt” exists, then summary judgment must be reversed. In ruling on a motion for summary judgment, the court may neither adjudge the credibility of the witnesses nor weigh the evidence.”) (citations omitted).
Fraudulent Billing
“Fraud is ordinarily inappropriate for summary disposition; only after a full explanation of the facts and circumstances can the occurrence of fraud be determined.” Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1989). See also Public Health Trust of Dade County v. Prudential Ins. Co., 415 So. 2d 896, 897 (Fla. 3d DCA 1982) (“The affimative defense of fraud is usually considered a jury question and is not ordinarily appropriate for summary judgment proceedings.”). “Nevertheless, there are circumstances which will permit summary judgment even where fraud is alleged.” Peninsula Yacht Cay Dev., Inc. v. Southern Florida Banc Sav. Ass’n, 552 So. 2d 1139, 1140 (Fla. 3d DCA 1989). In Peninsula Yacht Cay, the movant filed an uncontroverted affidavit establishing that a material misrepresentation had not occurred.
In this case, Chase’s third affidavit clearly establishes the existence of a genuine issue of material fact as to fraudulent billing. In her EUO, Cabrera confirmed that she did not receive the same treatments on consecutive days. Within the record, one finds the billing records, which when viewed critically shows quite a few instances of consecutive billing for treatments such as manual adjustments and massages which Cabrera declared she did not receive in a consecutive manner. On this issue, the trial court should be reversed.
Usual and Customary Fees
Bottari filed a chart, which was illegible, and included no explanation as to how Bottari used the chart to arrive at his fees. This is not competent evidence, as contemplated in The Florida Bar v. Mogil, 763 So. 2d 303, 307 (Fla. 2000) or Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979), sufficient to shift the burden to United to come forward with countering evidence. The trial court should not have granted the motion for summary judgment as to this count.
Medically Reasonable and Necessary Services
United waived this issue as it did not address it within this appeal.
Attorney’s Fees
Where the underlying judgment is reversed, the order granting attorney’s fees based on the underlying judgment is also reversed. See Wagner v. Uthoff, 868 So. 2d 617, 618 (Fla. 2d DCA 2004). Therefore, as to the issue of attorney’s fees below, as United did not appeal all of the issues addressed in the summary judgment order, the matter is remanded to the trial court for its determination as to which party prevailed below consistent with these proceedings.
Accordingly, we reverse and remand this matter for further proceedings consistent herewith. The Appellee’s Motion for Appellate Attorney’s Fees is denied as United is the prevailing party in the case sub judice. (LEESFIELD and GROSS, JJ., CONCUR.)
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1United referred to interrogatories which may have been filed with the trial court, but which were not included for review here.
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