15 Fla. L. Weekly Supp. 1051a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Error to enter summary judgment in favor of medical provider on sole issue of reasonableness of charges based solely on affidavit of billing manager where billing manager’s attestation that charges were reasonable was based solely on manager’s knowledge and experience with the insurer and other insurers regarding reimbursements for the same procedures — Knowledge and experience with insurer are not addressed in statute as factors for consideration in determining reasonableness of medical charge
PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida Corporation, Appellant, v. VIRTUAL IMAGING SERVICES, INC., a/a/o Ramona Laurencio, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-157 AP. L.C. Case No. 05-015206 SP 23. September 11, 2008. On Appeal from the County Court, Miami-Dade County, Lehr, Myriam, J. Counsel: Douglas H. Stein and Stephanie Martinez, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, for Appellant. Joseph R. Littman, Kane & Kane, for Appellee.
(Before LEDERMAN, LANGER, and SILVER, JJ.)
(LANGER, Judge.) This is an appeal of a Final Summary Judgment entered by the county court in Miami-Dade County in favor of the Appellee, Virtual Imaging Service, Inc., a/a/o Ramona Laurencio (Virtual Imaging). We have jurisdiction pursuant to Fla. R. Civ. P. 9.030(c)(1)(A). Virtual Imaging sought Personal Injury Protection (PIP) benefits from Progressive American Insurance Company (Progressive) for medical services rendered to the insured. When Progressive paid less than the amount billed, Virtual Imaging filed suit. The parties stipulated that the only issue was the reasonableness of the medical charges.
In support of its motion for summary judgment, Virtual Imaging filed the affidavit of its billing manager. Progressive filed the affidavit of its claim adjuster in opposition to the motion. After the hearing, but before the trial court rendered its Final Judgment, Progressive filed the affidavit of its expert which the trial court struck as being untimely. Progressive filed the instant appeal which challenges the granting of final summary judgment and the award of attorney’s fees and costs.
The standard of review of a lower court’s summary judgment order is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). The proper analysis of a trial court’s order of summary judgment is two-pronged. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000). First, this Court, viewing every possible inference in favor of Progressive, must determine if a genuine issue of material fact existed. See Building Educ. Corp. v. Ocean Bank, 982 So. 2d 37, 40 (Fla. 3d DCA 2008). Second, if this Court finds that a genuine issue of material fact exists, then it must determine whether Virtual Imaging is entitled to summary judgment as a matter of law. Id.
By stipulation of the parties, reasonableness of the medical charges was the only issue the trial court had to resolve. Because Virtual Imaging was the moving party, it had the burden to show the nonexistence of a genuine material fact. See Deutsch v. Global Financial Services, LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008). Progressive is not required to establish that a genuine issue of material fact exists until Virtual Imaging has met its burden. Id.
This is a personal injury protection action. Therefore, in determining whether Virtual Imaging’s medical charges are reasonable, this Court must allow the “legislative intent to be its polestar guiding its inquiry under the No-Fault statutes.” See Allstate Ins. Co. v. Holy Cross Hosp. Inc., 961 So. 2d 328, 334 (Fla. 2007). To determine that intent, this Court must first look to the statute’s plain language. See Kasischke v. State, No. SC07-128, 2008 WL 2678449 *2 (Fla. July 10, 2008) [33 Fla. L. Weekly S481a]. Statutes that are clear and unambiguous do not require the court to “look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id. quoting Borden v. East European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006).
The plain and unambiguous language of § 627.736(5)(a), Florida Statutes provides a guideline for determination of reasonable medical charges. That statute states in relevant part:
With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
Virtual Imaging’s witness made a general statement that the charges were reasonable. She based that assertion on her “knowledge and experience with [Progressive] and other insurers reimbursing for the same procedures.” The factors used by Virtual Imaging’s witness regarding her knowledge and experience with the insurer are not addressed in the statute as factors for consideration of a reasonable medical charge.
“What a provider customarily charges or has previously accepted are important factors for determining whether a fee is reasonable.” See Holy Cross Hosp. Inc., 961 So. 2d at 626. Virtual Imaging’s witness did not provide any evidence of her personal knowledge of these “important factors.”
Under the statute, Progressive is not required to pay unreasonable medical charges. Virtual Imaging has not carried its burden of establishing that Progressive failed to pay “reasonable” medical charges it billed. Therefore, a genuine issue of material fact regarding the reasonableness of the medical charges has been created, and thus, needs to be resolved by the trier of fact. Because Virtual Imaging did not satisfy the first prong of the standard of review applied upon review of the summary judgment order, the trial court should not have granted summary judgment in its favor. This Court declines to address the other issues regarding whether summary judgment was appropriate on the facts of this case.
For these reasons, the ruling granting Final Summary Judgment in favor of Appellee, Virtual Imaging Services, Inc., is REVERSED. Additionally, the Final Judgment awarding attorney’s fees and costs to the Appellee is REVERSED. Appellee is not a prevailing party pursuant to § 627.428(1), Fla. Stat. (2006). The cause is REMANDED to the trial court for further proceedings consistent with this opinion. (LEDERMAN AND SILVER, JJ. concurs.)
