14 Fla. L. Weekly Supp. 795c
Insurance — Personal injury protection — Summary judgment — Opposing affidavit — Affidavit in opposition to provider’s motion for summary judgment on issue of reasonable and customer charges was legally insufficient where affidavit was not based on personal knowledge and did not authenticate and attach all documents relied upon in forming opinion — Because insurer did not file another affidavit, despite court having granted leave to do so, summary judgment on issue is granted in favor of medical provider
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., A/A/O WILFREDO COLON, Plaintiff, v. PROGRESSIVE AUTO PRO INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-1417 SP-24. June 18, 2007. Darrin P. Gayles, Judge. Counsel: Ezra Scrivanich, Shuster & Saben, LLC, Miami, for Plaintiff. Lincoln Fingal, Rudd & Diamond, P.A., Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO ISSUE OF “REASONABLE AND CUSTOMARY CHARGES”
THIS MATTER having come before the Court for hearing on Plaintiff’s Motion for Summary Judgment With Respect to Issue of “Reasonable and Customary Charges”, and the Court having reviewed the Court file, includingall record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises.
It is hereby ORDERED and ADJUDGED as follows:
1. On May 17, 2007, the Court held a hearing on Plaintiff’s Motion for Summary Judgment on the issue of “Reasonable and Customary Charges”.
2. In support of its Motion, the Plaintiff filed the affidavit of Jose Garcia, the president and director of operations of Millennium Diagnostic Imaging Services, Inc. In his affidavit, Mr. Garcia attests that he has personal knowledge of, and is familiar with, what is a reasonable and customary charge for CPT codes 72052, 72074, 72110, and 73120 in Miami-Dade County during 2003. Based upon his knowledge and familiarity, Mr. Garcia opined that $330.00 was a reasonable and customary charge for CPT code 72052 (X-rays of cervical spine) in Miami-Dade County during 2003, $300.00 was a reasonable and customary charge for CPT code 72074 (X-rays of thoracic spine) in Miami-Dade County during 2003, $300.00 was a reasonable and customary charge for CPT code 72110 (X-rays of lumbar spine) in Miami-Dade County during 2003, and $200.00 was a reasonable and customary charge for CPT code 73120 (X-rays of right hand) in Miami-Dade County during 2003.
3. In opposition to Plaintiff’s Motion, the Defendant filed the affidavit of Darrell Spell. The affidavit of Mr. Spell merely states that the Plaintiff’s charges exceeded what is reasonable and customary.
4. At the hearing, Plaintiff’s counsel argued, and the Court agreed, that Mr. Spell’s affidavit is not based upon personal knowledge, does not provide a basis for his opinion, and is merely conclusory. Furthermore, Mr. Spell’s affidavit did not properly authenticate and attach to his affidavit all documents Mr. Spell relied upon in forming his opinion, as required by Rule 1.510(e), Fla. R. Civ. Pro. As such, the Court found that the Defendant’s affidavit of Darrell Spell was legally insufficient and does not comply with Rule 1.510(e), Fla. R. Civ. Pro.
5. The Court exercised its discretionary authority and gave the Defendant twenty (20) days to supplement the Court file with another affidavit of Darrell Spell that properly authenticates and attaches all documents relied upon by Mr. Spell is forming his opinion. Furthermore, the Court granted the Plaintiff’s Motion to Compel Defendant’s Better Response to Plaintiff’s Discovery on the issue of reasonable and customary charges, and the Court gave the Defendant twenty (20) days to produce all documents the Defendant intends on using at trial in support of its “above usual and customary charges” defense.
6. More than twenty (20) have passed since the Court’s Order of May 17, 2007, and Defendant has failed to file another affidavit of Darrell Spell that properly authenticates and attaches all documents relied upon by Mr. Spell in forming his opinion, in compliance with Rule 1.510(e), Fla. R. Civ. Pro.
7. The Defendant failed to comply with the Court’s Order compelling the production of all documents the Defendant intends on using at trial in support of its “above usual and customary charges” defense.
8. In the absence of a legally sufficient affidavit filed in opposition to the Plaintiff’s affidavit, there are no genuine issues of material fact with respect to whether the Plaintiff’s charges were reasonable and customary. Summary judgment is hereby granted for the Plaintiff and against the Defendant on the issue of “Reasonable and Customary Charges”. The Court finds that $330.00 is a reasonable and customary charge for CPT code 72052 (X-rays of cervical spine) in Miami-Dade County during 2003, $300.00 is a reasonable and customary charge for CPT code 72074 (X-rays of thoracic spine) in Miami-Dade County during 2003, $300.00 is a reasonable and customary charge for CPT code 72110 (X-rays of lumbar spine) in Miami-Dade County during 2003, and $200.00 is a reasonable and customary charge for CPT code 73120 (X-rays of right hand) in Miami-Dade County during 2003.
