14 Fla. L. Weekly Supp. 424a

Insurance — Personal injury protection — Summary judgment — Hearing — Continuance — Pending discovery — No abuse of discretion in denying motion to continue second summary judgment hearing due to pending discovery where first summary judgment hearing was continued for 3 months to allow additional depositions, and insurer has shown no extenuating circumstances to explain lack of any attempt to re-schedule depositions during 3-month delay — Factual issues — Opposing affidavit — In entering summary judgment in favor of provider, it was error to overlook or dismiss opposing affidavit and report of IME doctor refuting need for diagnostic testing because IME report was filed separately from affidavit where report was incorporated in affidavit by reference — Error to enter final summary judgment addressing reasonableness of charges but failing to address pending unresolved issue of medical reasonableness of treatment

PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC. a/a/o YUNIET GALLARDO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-058 AP. L.C. Case No. 04-016228 SP 23. February 12, 2007. On appeal from the County Court of Miami-Dade County, Caryn Schwartz, Judge. Counsel: Douglas H. Stein, Anania, Bandklayder, Blackwell, Baumgarten Torricella & Stein, for Appellant. Richard Shuster and Micheal Rudd, Micheal Rudd & Associates, P.A., for Appellee.

(Before HOGAN-SCOLA, JIMENEZ, AND ARECES, JJ.)

(JIMENEZ, Judge.) Pending before the panel is an appeal of a final summary judgment entered against the Appellant, Progressive American Insurance Company (Progressive Insurance), and entered for Millennium Diagnostic Imaging Center (Millennium). For the reasons that follow, this court is reversing the summary judgment ruling and remanding this matter to the County Court for further proceedings.

Facts

This appeal stems from a suit filed by Millennium against Progressive Insurance for paying less than the prescribed statutory amount owed for services rendered to a patient insured by Progressive Insurance. Millennium, a Florida company which provides x-ray exams, CT brain scans and other diagnostic imaging services, submitted to Progressive Insurance its bill totaling $2,500 for diagnostic imaging services of which Millennium expected to be paid $2,000, i.e., 80% of the total charges in accordance with Florida’s PIP statute. However, Progressive Insurance paid only $1,276 after deducting certain amounts based on its adjustor’s allowances. As a result, on August 12, 2004, Millennium filed suit contending:

[Progressive Insurance] is in violation of §627.736(7)(a), Florida Statutes, for reducing the Assignor’s medical bills without first obtaining a report by a physician licensed under the same chapter as the treating physician . . . .

and

[Progressive Insurance] is in violation of §627.736(1)(b), Florida Statutes, for failing to pay the Assignor’s medical bills within 30 days from the date of the bills, and for failing to obtain proof within the 30 day period that the medical expense incurred was not a covered loss.¹

On October 7, 2004, Millennium filed a motion for Partial Summary Judgment on numerous grounds including whether the services rendered to the insured were reasonable, related and medically necessary. In support of its motion, Millennium filed several affidavits attesting to the reasonableness of the charges for services, the reasonable manner in which services were conducted, the injuries sustained by the insured, and the reasonableness, relatedness and medical necessity of the services rendered.

On October 14, 2004, Progressive Insurance filed its Answer denying all allegations and raising various affirmative defenses including the following:

4. The Plaintiff’s claims fail to satisfy the requirement imposed by Florida Statute §627.736(1). Specifically, those medical services allegedly provided to the Plaintiff were medically unnecessary, unrelated to the subject accident, and the charges for said medical services were unreasonable.

Subsequently, on September 6, 2005, in opposition to Millennium’s summary judgment motion, Progressive Insurance filed: (1) an Explanation of Benefits, (2) a Coding Expert Report evaluating the reasonableness of the charges, (3) the affidavit of Dr. Richard Glatzer, an orthopedic surgeon, and (4) an Independent Medical Examination (IME) report prepared by Dr. Glatzer regarding his findings as to the reasonableness, relatedness and medical necessity of the services rendered.

On September 7, 2005, a hearing on the summary judgment motion was held. At the conclusion of the hearing, the trial court ordered a continuance on the reasonableness, relatedness and medical necessity issues under dispute.

On December 14, 2005, the second hearing on the motion for partial summary judgment was held which also addressed Millennium’s Motion to Strike the IME report of Dr. Glatzer. At the conclusion of the hearing, the trial court granted summary judgment in favor of Millennium, and ultimately concluded that Millennium was entitled to Final Summary Judgment since it has met the elements of its cause of action. This appeal ensued.

In its appeal, Progressive Insurance identifies 4 errors in the trial court’s granting of the summary judgment. First, Progressive Insurance contends that the trial court should not have entertained the motion for summary judgment prior to the occurrence of certain depositions scheduled but not yet conducted by Progressive Insurance. Therefore, the entry of a summary judgment was premature in light of the pending scheduled depositions which would have enabled Progressive Insurance to investigate and develop the facts regarding the reasonableness, relatedness and necessity of the services rendered.

Second, Progressive Insurance contends that Dr. Glazer’s affidavit and accompanying Independent Medical Examination (IME) report — addressing his findings as to the lack of reasonable, related and necessary medical treatment rendered to the insured — counters Millennium’s claims. Thus, this affidavit filed in opposition to Millennium’s Motion for Summary Judgment created a genuine issue of material fact.

Third, Progressive Insurance notes that the trial court ruled as to the reasonableness of the charges, but failed to address the reasonableness of the treatment. Therefore, final summary judgment is improper in light of the remaining issue of fact as to the reasonableness of the treatment.

Lastly, Progressive Insurance contends that the trial court erred in determining that Progressive Insurance waived its statutory defenses by paying the claim. Progressive Insurance notes that there is no authority which bars it from later contesting the reasonableness, relatedness and necessity of the services provided simply because it has paid a portion of the claim.

Progressive Insurance concludes that this Court, on de novo review, should reverse the trial court’s decision based on these errors.

Decision

Upon review we concur, in part.

A: Denial of Continuance

We note at the outset that a threshold issue of this appeal is whether to affirm or reverse the trial court’s decision denying a further continuance of the summary judgment hearing when discovery is pending.

While no mechanical formula exists for determining when the denial of a continuance is so arbitrary as to constitute an abuse of discretion, appellate courts review continuance claims deferentially in light of the unique and practical view of the trial court, and in light of the trial court’s considerable latitude in assessing whether or not the facts, circumstances, and procedural development of the case warrant a continuance. Philip Padovano, FLORIDA APPELLATE PRACTICE, § 9.5 Discretionary Decisions (2006 ed.).

Thus, this Court has reviewed deferentially the trial court’s decision to continue the summary judgment hearing while discovery is pending based on the circumstances of the case and the reasons presented to the trial court at the time the request for a continuance was denied. We find that the record supports the trial court’s decision to entertain the motion for summary judgment, and to no longer delay the summary judgment ruling.

As noted above, Progressive Insurance contends that the trial court’s entry of the summary judgment order was premature since Progressive Insurance had yet to depose persons, involved in the care and treatment of the insured, whose depositions had been noticed and scheduled but not taken. Therefore, Progressive Insurance did not have an opportunity, prior to the summary judgment hearing, to investigate and develop the facts pertinent to preparing a defense as to the reasonableness, relatedness and necessity of the services rendered by Millennium. Progressive Insurance further contends that it is unjust to enter a summary judgment when the facts have not been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact.

Yet, an examination of the record discloses that Progressive had nearly 3 months in which to take depositions and prepare an effective defense. Specifically, the depositions of the treating physician and Millennium’s radiologist, originally scheduled for May 18, 2005, were continued to accommodate a scheduling conflict of the parties, the deponents and their counsel. On July 7, 2005, before the depositions could be taken, Millennium sought and received a Protective Order. The Order, entered on August 18, 2005, merely required Progressive Insurance to pay an expert witness fee to the treating physician whose deposition was being sought. On September 7, 2005, at the conclusion of the first summary judgment hearing (and following the entry of the Protective Order), Progressive Insurance informed the court that it was unable to procure the depositions of the treating physician, the radiologist and the Plaintiff; and thus, it would like the court to allow additional time to conduct the pending depositions before ruling on the summary judgment motion. The trial court ordered a continuance.

Progressive Insurance had until December 14, 2005, the second hearing date, to reschedule and conduct the depositions of the treating physician or anyone else from Millennium’s facility. Yet, Progressive Insurance offered no evidence of extenuating circumstances to explain why it made no attempts in the 3 month span to re-schedule the depositions before the December hearing date. Given the length of time that occurred between the entry of the Protective Order and the second summary judgment hearing, Progressive Insurance had ample time to depose Millennium’s witnesses. It simply failed to act diligently. When considering the posture of the case, the context and the nature of the discovery, Progressive Insurance contributed to the circumstances which gave rise to the request for a continuance and the decision to deny the request.

Thus, this Court finds the record substantiates the trial court’s appropriate decision to entertain the motion for summary judgment, and to no longer delay the summary judgment hearing pending the completion of discovery. Progressive Insurance simply did not use due diligence in preparing its defense. Therefore, the trial court’s denial of continuance was not an abuse of discretion.

B: Summary Judgment & Conflicting Affidavits

Conversely, the trial court’s decision granting the summary judgment does constitute reversible error.

Summary judgment is appropriately granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P.1.510 (c).

Upon applying the de novo standard of review,² this court finds that the trial court has erroneously overlooked and/or dismissed the opposing affidavit proffered by Progressive Insurance in opposition to Millennium’s summary judgment motion; and has misinterpreted the statutory provisions governing the payment of PIP claims; thus, in effect, inappropriately granted summary judgment.

For purposes of summary judgment, a “genuine issue” exists where the record contains competent contradictory evidence of an essential fact or element of the case. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). In an action for PIP benefits, a party moving for or opposing a summary judgment regarding entitlement to PIP benefits must produce sufficient evidence demonstrating that the benefits are or are not payable under the PIP statute. Auto Owners Insur. Co. v. Marzulli, 788 So. 2d 1031 (Fla. 2d DCA 2001) (in a lawsuit seeking benefits under the PIP statute, the normal dynamics of proof as to why medical service should be paid apply). Any relevant contradictory evidence presented, such as opposing affidavits, should survive any motion for summary judgment regarding entitlement to PIP benefits if a court or a jury could find the proffered evidence sufficient to raise a genuine issue of fact regarding the reasonableness, relatedness and medical necessity of the bills submitted to the insurer for payment, i.e., the elements of the case.

In this case, the opposing affidavits submitted by the opposing parties are competent proof that a genuine issue of fact does exist requiring a full hearing on entitlement to payment for medical services rendered. Specifically, the gravamen of Millennium’s motion for summary judgment is the reasonableness of its charges for CT scans and X-rays. In support of its summary judgment motion, Millennium relied on a series of affidavits of its vice president, radiologist, treating physician, and the insured attesting to the reasonableness of the charges for services, the reasonable manner in which services were conducted, the injuries sustained by the insured, and the reasonableness, relatedness or medical necessity of the services rendered.

In opposition, Progressive Insurance presented an Explanation of Benefits, Dr. Glatzer’s affidavit and an accompanying IME report prepared by Dr. Glatzer attesting to the lack of the reasonableness, relatedness or medical necessity of the diagnostic imaging services rendered and the charges. The IME report reads, in relevant part:

Clinically, I could find no positive objective orthopedic or neurological clinical findings to corroborate the patient’s subjective complaints for which to state there was any underlying organic pathology as a basis to those complaints. . . . I could find no causal relationship between the patient’s subjective complaints and the motor vehicle accident. . . . Continuing medical care, future diagnostic testing . . . is not reasonable necessary or related. . . . I did not feel . . . the CT scan of the brain or any x-rays were reasonable, necessary or related. (Record at 68).

Based on Dr. Glatzer’s IME report, which sets forth his diagnosis, Progressive Insurance refutes the need for the diagnostic testing services rendered and therefore the need to pay for the charges associated with unnecessary services. This opposing report was presented at both summary judgment hearings. Nevertheless, the trial court ruled in favor of Millennium.

It is presumed that the trial court, after considering the proffered evidence, granted the motion for summary judgment, perceiving the affidavit of Progressive’s expert as insufficient to overcome Millennium’s motion for summary judgment. This may have been attributable to Millennium’s characterization of Progressive’s medical expert’s affidavit as unsupported speculation which insufficiently supports Progressive’s claim. That is, Progressive may well have lost its case for purportedly failing to adhere to the technical rules governing the submission and sufficiency of summary judgment affidavits since the IME report was submitted separately from the affidavit as an un-notarized and non-certified document.³

However, under Verdino v. Charcoal Pit, Inc., 898 So. 2d 246 (Fla. 4th DCA 2005), summary judgment attachments, when verified as authentic, are not required to be physically attached to the affidavit. Such exhibits qualify as competent evidence if sworn to by a custodian who can attest to the exhibits’ authenticity, or if certified by an official certificate which identifies the document as genuine when not accompanied by an affidavit. See also, Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997).

We find in this case, the IME report, prepared by Dr. Glatzer and incorporated by reference in Dr Glatzer’s affidavit, does constitute competent summary judgment evidence. The affidavit sufficiently authenticates the report’s reliability. The mere fact that the report is not physically attached to the affidavit is merely an error as to form which should be disregarded. Charlonne v. Rosenthal, M.D., 642 So. 2d 632 (Fla. 3d DCA 1994) (it is the substantive contents, not the form that determines the legal sufficiency of a summary judgment affidavit). Accordingly, the IME report should be considered for purposes of summary judgment even though the report and the affidavit were filed separately.

C: Final Summary Judgment & Pending Issues

We further find that the trial court has erroneously overlooked or dismissed pending unresolved issues which remain to be adjudicated; and therefore, erroneously granted final summary judgment. In particular, the trial court overlooked or dismissed as legally insufficient Progressive Insurance’s “medically reasonable” contentions. As a result, the trial court mistakenly segregated the reasonableness of the treatment from the reasonableness of the costs.

As correctly noted by Progressive Insurance, in an action for unpaid PIP benefits brought by a provider to whom rights are assigned, the assignee must establish the relatedness, reasonableness and necessity of the bill submitted to the insurer for payment. Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998). Thus, claims for payment of PIP benefits will necessarily involve medical reasonableness. An insurer who contests the payment of a PIP claim or the reasonableness of the amount of the particular charges is challenging both the particular costs incurred and the necessity and the reasonableness of the care associated with the costs. Accordingly, competent contradictory evidence presented by an insurer, such as affirmative defenses and supporting affidavits, as to the lack of medical reasonableness justifying a refusal to pay, should survive a motion for summary judgment regarding entitlement to payment of PIP benefits.

The record establishes that Progressive Insurance, in this case, is contesting the reasonableness of the charges and the reasonableness of the service. Specifically, the IME report, prepared by Progressive Insurance’s medical examiner, questions the furnishing of certain services to the insured and ultimately concludes that the imaging services were inappropriate in light of the examiner’s diagnosis as to the treatment required for the patient. The report (which this Court has determined is competent and admissible), in essence, rebuts the need for the imaging services, and therefore rebuts the need to pay for unnecessary services, or to accept unnecessary costs for the nature of the services rendered.

Given the trial court’s failure to address and dispose of the reasonableness of the treatment, precluded the trial court from granting Millennium final summary judgment under the assumption Millennium has met the elements of its cause of action. Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932 (Fla. 2d DCA 1995) (a court should decline to grant a motion for summary judgment until reasonably certain that there is no genuine issue of material fact). Accordingly, the trial court decision was premature and should be reversed.

In conclusion, based on a de novo review of the record facts and the governing law, this Court finds that the trial court erred in granting the summary judgment. The Final Judgment Order is vacated, and this matter is remanded to the County Court for further proceedings. (HOGAN-SCOLA, and ARECES, JJ., concur.)

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¹This allegation has been restated for simplification purposes.

²Volusia County v. Aberdeen at Ormond Beach, LP, 760 So. 2d 126 (Fla. 2000) (an appellate court in reviewing summary judgment challenges is required to apply a de novo standard of review)

³Fla. R. Civ. P. 1.510 (e) governing summary judgment affidavits reads:

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.