13 Fla. L. Weekly Supp. 129b
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Affirmative defenses — Claim in excess of statutory allowance — No abuse of discretion in holding that issue of whether MRI bills were in excess of statutory allowance should have been pled as affirmative defense if insurer intended to argue that excessiveness was complete bar to payment — Any error in excluding insurer’s witness regarding excessiveness of bills was harmless where cross-examination of medical provider’s operations manager established bills were in excess of statutory maximum, and jury verdict was ultimately reduced to amount allowable under statute — Directed verdict — Appeals — Insurer failed to preserve issue of denial of motion for directed verdict for appellate review where there is no indication that insurer moved to set aside jury verdict or for entry of judgment in accordance with previous motion
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA MRI, INC. AND RADIOLOGY B & SERVICES, INC., a/a/o DERRICK HARDEN, Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 04-3509 CACE (05). October 10, 2005. Counsel: Steven Lander. Steven M. Goldsmith. Michael J. Neimand.
ORDER
(RICHARD D. EADE, J.)THIS CAUSE comes before the Court upon Appellant’s, United Automobile Insurance Company (“United Auto”), Appeal of the Final Judgment entered by the trial court following a jury verdict in favor of Appellees, Florida MRI, Inc. and Radiology B & Services, Inc., a/a/o Derrick Harden (“Florida MRI”). Having reviewed the appellate file, considered applicable law and being otherwise advised in the premises, the Court, dispensing with oral argument, finds and decides as follows:
On November 25, 2002, Assignor, Derrick Harden, received medical treatment from Assignee, Florida MRI, following an automobile accident. Florida MRI submitted billing statements and sought payment from Insurer, United Auto. When payment was not received, Florida MRI filed suit on May 13, 2003 against United Auto for Breach of Contract of PIP benefits. On July 14, 2003, United Auto filed its Answer and Affirmative Defenses, listing Assignor’s failure to attend an independent medical examination as its only affirmative defense. The case proceeded to trial. During opening statements, counsel for United Auto informed the jury that Florida MRI bore the burden of proving its medical bills were reasonable, necessary and related to the accident. Additionally, United Auto asserted the charges submitted were above what was usual and customary and that such charges were prohibited by law. §627.736(5)(b)(5), Fla. Stat.
Outside of the presence of the jury, the trial court questioned counsel for United Auto regarding her intention to present a defense based upon the charges being in excess of the statutory MRI fee schedule. Thereafter, the trial court prohibited United Auto from presenting the defense that payment was barred based upon the charges submitted being above the amount allowed under the statute. The trial court stated since United Auto had not pled this issue as an affirmative defense, the argument had been waived and consequently, United Auto was also prohibited from presenting testimony from its adjuster regarding this matter. However, the trial court did allow United Auto to cross-examine Florida MRI’s operations manager on the elements of reasonableness, necessity and relatedness.
On direct examination, the operations manager testified the charges were reasonable and customary based upon benefits paid by other insurance companies in the community and surveys conducted of other MRI centers in Broward County. On cross examination, the operations manager admitted Florida MRI’s bills were in excess of the statutory maximum. At the end of Florida MRI’s case, United Auto moved for a directed verdict asserting that since the bills were in excess of the statutory maximum, payment was completely barred. The trial court denied the motion and again indicated since this issue was not pled as an affirmative defense, it could not now be asserted. The jury reached a verdict in favor of Florida MRI, finding the charges were “medically reasonable as to the dollar amount charged, necessary and related to the accident.” The Final Judgment entered by the trial court reduced the jury verdict to the maximum allowable amount under the statute.
On appeal, United Auto argues: (1) the trial court erred in holding the elements of reasonableness, relatedness and necessity constitute an affirmative defense, and the inability to maintain its defense prevented it from challenging the excessiveness of the MRI bills, and (2) the trial court erred in denying United Auto’s motion for directed verdict on the grounds that it waived its right to contest reasonableness of the charges.
First, an affirmative defense is a pleading that bars the cause of action asserted by the opposing party in its complaint. Fla.R.Civ.P.1.110(d); Langford v. McCormick, 552 So.2d 964 (Fla. 1st DCA 1989). An affirmative defense that is not pled is deemed waived. Fla.R.Civ.P.1.140(b). Here, a review of the transcript of the proceedings fails to demonstrate the trial court held the elements of reasonableness, relatedness and necessity constituted an affirmative defense. Rather, the trial court stated the issue of whether the bills were in excess of the statutory allowance was an affirmative defense which United
Auto should have pled if it intended to argue excessive billing amounted to a complete bar to payment. The January 27, 2004 trial transcript reflects the trial court stated the following pertaining to this matter:
I would not permit the adjuster to testify concerning the statutory issues about the charge being in excess of the Medicare Schedule B, Part B. Having ruled that the defense waived this issue, I am not going to allow inquiry of the adjuster in terms of that being a reason for denial of the bill.
Under these facts and circumstances, the trial court did not abuse its discretion. If the exclusion of United Auto’s witness was erroneous, it constituted harmless error as the cross examination of the operations manager established the bills were in excess of the statutory maximum, and the jury verdict was ultimately reduced to the amount allowable under the statute. §59.041, Fla. Stat.; Sims v. Brown, 574 So.2d 131 (Fla. 1991).
Second, United Auto failed to properly preserve the issue of the directed verdict for appellate review as there is no indication United Auto moved to set aside the jury verdict or moved for entry of judgment in accordance with its previous motion. Fla.R.Civ.P.1.480(b); Industrial Affiliates, Ltd. v. Testa, 770 So.2d 202 (Fla. 3rd DCA 2000). Accordingly, it is
ORDERED AND ADJUDGED that the Appeal is hereby DENIED.
FURTHER ORDERED AND ADJUDGED that Appellees’ Motion for Appellate Attorney’s Fees is hereby GRANTED. Reasonable attorney’s fees and costs shall be awarded to Appellees for services rendered on this appeal as determined by the trial court. Fla. R. App. P. 9.400.
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