13 Fla. L. Weekly Supp. 126a
Insurance — Personal injury protection — Ruling that provider had burden to prove reasonableness of treatment, but not reasonableness of price, was error — Appeals — Insurer did not invite error and waive right to appeal where record shows that insurer argued that unreasonableness of medical provider’s charges need not be pled as affirmative defense, and not until judge upheld own ruling that insurer was estopped from arguing unreasonableness of amount of charge did insurer ultimately acquiesce to entry of final judgment
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. REMED INC. MEDICAL REHAB CENTER A/A/O N. TOLSTENKO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-651 AP. L.C. Case No. 2001-013874 CC 23. November 8, 2005. An Appeal from the County Court of Miami-Dade County, Linda S. Stein, Judge. Counsel: Douglas H. Stein, for Appellant. David M. Spitz and Antoinette R. Appel, for Appellee.
(Before MANUEL CRESPO, WILLIAM JOHNSON, LESTER LANGER, JJ.)
(PER CURIAM.) This cause came before the Court upon Appellant, Progressive Express Insurance Company, appeal of the Final Judgment dated December 2, 2004. The Court, having read the memoranda and considered the oral arguments, is fully advised in the premises. This court adopts the following findings of fact and makes the following conclusions of law:
Remed, Inc. Medical Rehab Center (“Remed”) filed suit under Florida Statute §627.736, against Progressive Express Insurance Company (“Progressive”) as assignee of the injured insured. Remed alleged that Progressive failed to pay the full amount for medical services Remed rendered to the insured. Paragraph six of Remed’ s complaint alleged that the insured, “incurred reasonable expenses for necessary medical treatment. . . .” Progressive denied this allegation in its answer and stated as an affirmative defense, that payment was made, “for all reasonable and necessary medical care/treatment. . . .”
At the pre-trial conference, the court ruled that the only triable issues were assignment, accord and satisfaction and whether the treatment was reasonable, related and necessary (RRN). Subsequently, doubt arose as to whether the previously ascribed triable issues were the reasonableness of the services or the reasonableness of the amount of the services. Progressive thereafter filed a Motion for Clarification. At the hearing on Progressive’s motion, Remed argued that since Progressive failed to plead the unreasonableness of the amount of the services as an affirmative defense, Progressive was precluded from raising it during trial. On the other hand, Progressive argued that it properly refuted the reasonableness of the amount of the services in its affirmative defenses and in the alternative, that it was not required to raise the reasonableness of Remed’s charges because it was Remed’s burden to prove reasonableness. The court ruled that issues relating to charges and pricing for medical treatment, “has not been pled and is therefore not an issue in this case.”
Thereafter, Progressive indicated that if the court were to rule that Progressive was estopped from raising the reasonableness of the amount of Remed’s services as well as other such matters not previously raised as affirmative defenses, “then there would be no need for a trial and then the parties could simply submit to the Court a final judgment.” The court upheld its ruling and entered a Final Judgment for Plaintiff.
On appeal, Progressive argues the trial court erred in relieving Remed of its burden of proving that the charges for the services rendered were reasonable. In its Answer, Remed challenges only Progressive’s underlying right to appeal as waived due to invited error.
When it is obvious that a party submits to an action they believe to be contrary to the dictates of the law only because it is clear the judge is determined take to take such action, the party’s conduct does not deprive them of the right to an appeal on the merits. O’Malley v. McMullen, 294 So. 2d 379 (Fla. 1st DCA 1974); Robbins v. Thompson, 291 So. 2d 225 (Fla. 1st DCA 1974).
Here, the record shows that Progressive incessantly argued, at the pretrial conference, during a motion for clarification, by letter and via phone, that the unreasonableness of a medical provider’s charges need not be pled as an affirmative defense. Not until after the judge upheld her ruling that Progressive was estopped from arguing the reasonableness of the amount of services at trial, did Progressive ultimately acquiesce to the entry of the final judgment. Therefore, contrary to Remed’s contention, Progressive did not invite the error of which it now complains. Progressive acquiescence to the entry of the final judgment was clearly under objection and did not stand to waive its right to appeal.
Under Florida Statute §627.736, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service. “There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable.” Auto Owners Ins. Co. v. Marzulli, 788 So.2d 1031 (Fla. 2d DCA 2001).
As the statute repeatedly indicates, the reasonableness of a medical provider’s service is measured in terms of the charge, as well as the treatment. §627.736(1)(a), (4)(b), (5)(a), (6)(b). Additionally, the court in Derius v. Allstate Indemnity Company, 723 So. 2d 271 (Fla. 4th DCA 1998), clarifies the application of Fla. Stat. §627.736. The court explains, “[u]nder this statute, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service. . . .” (emphasis added)
As such, the court’s belief that, “[Remed was] correct. . .that it’s reasonable treatment,” and ruling that Remed had the burden to prove reasonableness in regard to, “reasonable treatment, not with regard to reasonable price, does not comport to the law. Fla. Stat. 627.736; Charter Oak Fire Ins. Co. v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976); Donovan v. State Farm Mut. Auto. Ins. Co., 560 So.2d 330 (Fla. 4th DCA 1990); Derius v. Allstate Indem. Co., 723 So.2d 271 (Fla. 4th DCA 1998).
Accordingly, it is hereby ORDERED and ADJUDGED the Final Judgment for Plaintiff, REMED INC. MEDICAL REHAB CENTER A/A/O N. TOLSTENKO is VACATED. This cause is REVERSED and REMANDED to the lower court to take action not inconsistent with this opinion.
