17 Fla. L. Weekly Supp. 1003a

Online Reference: FLWSUPP 1710TAMAInsurance — Personal injury protection — Summary judgment — Opposing affidavit — Where affidavit of insurer’s expert was sufficient to raise doubt as to reasonableness of charges, trial court erred in entering summary judgment for medical provider on issue of reasonableness, relatedness and necessity of treatment — Error to enter summary judgment in favor of provider on count seeking nominal damages for insurer’s failure to provide explanation of benefits where there is no private right of action for failure to provide EOB — Appeals — Timeliness — No merit to argument that appeal of separate summary judgment on count alleging failure to provide EOB was untimely because it was not filed within 30 days — Summary judgment on EOB count was nonfinal and nonappealable where interrelated count remained pending before trial court

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. DR. TANYA KAHL, P.A., a/a/o Lida Tamayo, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos: 09-18592 CACE 13, 09-31840 CACE 13. L.T. Case No: 08-03962 COCE 55. August 4, 2010. The Honorable Sharon Zeller. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel/Trial Division, Miami. Roberts J. Bradford, Jr., Law Office of R.J. Bradford, Jr., P.C., Johnson City, TN.

OPINION

(TUTER, Judge.) THIS CAUSE came before the Court on United Automobile Insurance Company’s (UAIC) appeal from the lower court’s Final Judgment. The Court having considered the briefs filed by the parties and being duly advised in premises and law, dispenses with oral argument and finds and decides as follows:

Lida Tamayo (the Insured) was involved in a motor vehicle accident on July 28th, 2007 in which she sustained injuries. The Appellee, Dr. Tanya Kahl, P.A., (“Kahl”) treated the Insured for those injuries. Kahl submitted bills to UAIC, who after a pre-suit demand letter from Kahl, tendered partial payment. Kahl rejected the partial payment and on March 12, 2008 filed a complaint against UAIC to recover Personal Injury Protection (PIP) benefits for the medical services provided to the Insured. The Complaint included counts for Declaratory Judgment, Specific Performance/Breach of Contract, and Breach of Contract pursuant to Fla. Stat. 627.736(4)(b). The Amended Complaint included counts for Declaratory Judgment (Count I), Breach of Contract pursuant to Fla. Stat. 627.736(4)(b) — failure to provide an EOB (Count II), and Breach of Contract pursuant to Fla. Stat. 627.736(4)(b) — late payment).

Kahl voluntarily dismissed the Declaratory Judgment action (Count I) and moved for Final Summary Judgment on Count II (breach for failure to send EOB) and Count III (breach for late payment of benefits). (R. 376 and R. 92-182.) Counts I and II are alleged violations of Florida Statutes section 627.736(4)(b). Attached to Kahl’s motion was an affidavit executed by Kahl, assignments of benefits, medical records, patient bill ledger, correspondence with the insurer, and a copy of one the claims submitted for payment. On October 14, 2008, a hearing was held on Kahl’s motion. The trial court granted the motion as to Count II and continued the hearing as to the reasonableness, relatedness, and necessity of the treatment under Count III. On January 16, 2009, the trial court entered “Final Judgment as to Count II” awarding Kahl nominal damages and reserving jurisdiction to tax costs and fees. (R. at 319.)

Kahl filed and served a Renewed Motion for Summary Judgment (as to Count III) on December 22, 2008. UAIC filed two affidavits in opposition to the motion executed by a claims adjuster/corporate representative and an expert. In his expert affidavit, Dr. Frachtman opined that certain of the treatment were not reasonable, related or necessary. On February 27, 2009, a hearing was held on the issue of whether the unpaid charges were reasonable, related and necessary. Kahl argued that UAIC’s expert affidavit and peer review were conclusory and insufficient to raise an issue of disputed fact. UAIC argued that the evidence on the motion was insufficient as only one HCFA bill was submitted on the record. Rejecting UAIC’s argument and finding Dr. Frachtman’s affidavit to be conclusory and insufficient, the trial court granted Kahl’s renewed motion for summary judgment. (R. at 375.) The trial court thereafter entered “Final Judgment” on March 18, 2009. (R. at 377) On March 27, 2009, UAIC filed its notice of appeal of the Final Judgment. (R. at 378-379.)

Pursuant to the granting of final judgment, Kahl motioned for attorney’s fees and costs. After hearing on the motion, the court entered “Final Judgment and Order Granting Plaintiff’s Motion for Attorney’s Fees and Costs” on May 15, 2009. UAIC filed its notice of appeal of the final judgment for fees and costs on May 28, 2009. In the interest of judicial economy, the two appeals were consolidated.

REVIEW OF SUMMARY JUDGMENT

When reviewing a trial court’s entry of summary judgment, an appellate court applies a de novo standard of review. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. Unless the material facts are so crystallized that nothing remains except questions of law, summary judgment should not be granted. Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Moreover, “the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Holt v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966).

In the instant case, Appellant advances three assignments of error on appeal: (1) that the trial court erred in finding the affidavit of Dr. Frachtman to be conclusory and insufficient to create a genuine issue of material fact; (2) that the trial court erred in granting summary judgment as to Count II (failure to provide an FOB) as the insurer is not statutorily required to do so; and (3) that reversal of summary judgment necessarily requires reversal of the judgment as to attorney’s fees and costs. Appellant does not seem to argue the insufficiency of Kahl’s motion and supporting documentation on appeal. However, as the Court’s standard of review is de novo, the Court is compelled to first determine whether Kahl met her burden; and a review of the record reveals that she has. The Court finds that Kahl’s motion and supporting documentation were sufficient to shift the burden to UAIC.

Once the moving party has satisfied its summary judgment burden the burden shifts to the non-moving party, who must then establish the existence of a triable issue. Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705 (Fla. 3d DCA 1996). The opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and a conclusory affidavit is inadequate to create such an issue. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). While evidentiary matter offered in support of or opposition to a motion for summary judgment must be both relevant and competent as to the issues in the cause, it need not be in the exact form or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial. Holl at 45. Moreover, a movant’s affidavits are viewed strictly, whereas counter-affidavits are read more liberally. Id.¹ The Court must consider all facts in the light most favorable to the non-moving party and draw all reasonable inferences against the moving party. See Albelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996). Summary judgment is unavailable if the record raises “even the slightest doubt” as to the existence of an issue of fact. Id.

Dr. Frachtman conducted a peer review at the request of UAIC. Thereafter, Dr. Frachtman executed an expert affidavit, in which he lays the foundation for being an expert witness. Dr. Frachtman opines that certain modalities or visits were not necessary and certain services were overcharged. Dr. Frachtman bases his opinion on “the examination findings, subjective complaints, standards of practice, and my experience with similar cases.” Dr. Frachtman included a table specifying which modalities or visits he deemed unnecessary and which services were overcharged. The table further specified what reasonable charges for these services were. Dr. Frachtman’s peer review and the medical records reviewed in order to conduct the peer review were attached to the affidavit. In light of the respective burdens of the parties and the liberality afforded in reading the expert affidavit of a non-moving party, the Court finds that Dr. Fracthman’s affidavit was sufficient to at least raise doubt as to the reasonableness of the charges.² Thus, summary judgment should not have been granted.

As the issue of the reasonableness, relatedness, and necessity of the treatment is essential to Appellee’s underlying cause of action, the Court need not address summary judgment as to Count II. However, the Court will address the issue since the trial court purported to enter a final judgment on this count. Count II of the complaint seeks nominal damages for UAIC’s failure to timely provide an explanation of benefits. At the time the “Final Judgment as to Count II” was entered, the county court did not have the benefit of case precedent on the precise issue. Since then, however, the Third and Fourth District Courts of Appeal have clearly spoken to the issue concluding both that there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment and that there is no private right of action. United Automobile Insurance Company v. Coastal Wellness Center, Inc., 28 So. 3d 246 (Fla. 4th DCA 2010)(adopting the reasoning of United Automobile Insurance Company v. A 1st Healthcare Systems, 21 So. 3d 124, 127 (Fla. 3d DCA 2009)). Thus, summary judgment as to Count II was improper.

Appellee contends that Appellant should be precluded from appealing the final judgment as to Count II since Appellant neither filed a notice of appeal as to the “Final Judgment as to Count II” within thirty days of the order nor listed or attached the “Final Judgment as to Count II” to the notice of appeal that was filed. The Court fails to find merit in either argument. Summary judgment on some but not all counts of a complaint is generally not an appealable order. Gassner v. Caduceus Self Insurance Fund, Inc., 532 So. 2d 1133 (Fla. 4th DCA 1988); see also Raymond James & Associates, Inc. v. Godshall, 851 So. 2d 879 (Fla. 1st DCA 2003)(holding that an order granting a motion for partial summary judgment is nonfinal and nonappealable, although it includes the traditional language of finality, where a related claim remains pending). Piecemeal appeals are not permitted where claims are legally interrelated and substantively involve the same transaction. Mendez v. West Flagler Family Association, Inc., 303 So. 2d 1, 5 (Fla. 1974); Palm Beach Newspapers v. Walker, 506 So. 2d 39, 40 (Fla. 4th DCA 1987). “The test to determine whether counts of a multi-count complaint are so interrelated as to preclude a piecemeal appeal is: ‘whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts.’ ” Perry v. Perry, 976 So. 2d 1151 (Fla. 4th DCA 2008)(quoting Massachusetts Life Ins. Co. v. Crapo, 918 So. 2d 393, 394 (Fla. 1st DCA 2006)). There is no question that the two counts in this case arise from the same set of facts and transactions and include the same parties. Judicial labor still remained as to the alleged late payment of PIP benefits pursuant to Count III. The “Final Judgment as to Count II” is, therefore, a nonfinal, nonappealable order notwithstanding the county court’s intention otherwise.³

Moreover, appeal from a final decree brings all matters preceding such decree to the court. Price v. Gordon, 177 So. 276 (Fla. 1937). In other words, an appeal from a final order automatically brings before the court all interlocutory orders leading to the final judgment, and the notice of appeal need only specify the final order. See Fla. R. App. P. 9.110(h). As the “Final Judgment as to Count II” is a nonfinal order, Appellant was not required to specify this order in the notice of appeal. The notice of appeal is sufficient to invoke the jurisdiction of this court as to both summary judgment orders.

Finally, the award of attorney’s fees and costs pursuant to section 627.428 of Florida Statutes is predicated upon entry of judgment in favor if the insured. § 627.428(1), Fla. Stat. (1982); see also Hart v. Bankers Fire & Casualty Insurance Company, 320 So. 2d 485 (Fla. 4th DCA 1975). Reversal of the underlying judgment in this case, therefore, mandates reversal of the “Final Judgment and Order Granting Plaintiff’s Motion for Attorney’s Fees and Costs.”

Accordingly, it is hereby

ORDERED AND ADJUDGED that the trial court’s Final Judgment and Final Judgment as to Count II are REVERSED and REMANDED.

It is further ORDERED AND ADJUDGED that the “Final Judgment and Order Granting Plaintiff’s Motion for Attorney’s Fees and Costs” is REVERSED.

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¹In Holl, the Plaintiff offered an expert affidavit executed by a physician in opposition to Defendant’s motion for summary judgment. The affidavit opined that the treatment of the patient amounted to malpractice based upon a review of the hospital records, the depositions of the defendants, and an examination of the patient without explaining why each of the acts were negligent or detailing the standards of care that were breached. See Id. at 46. The Court concluded that such an explanation and detail were not required. Id.

²To find otherwise, as the county court suggests, would impose a requirement that the affiant at minimum conduct a survey of other practitioners in the community and outline the results in painstaking detail. This would be an unreasonable burden on the non-moving party at this stage of the proceedings and a requirement that not even the moving party was held to. Thus, if Dr. Frachtman’s affidavit is insufficient, Kahl’s affidavit is equally insufficient.

³Even if the Court were to construe the order as to count II a final appealable order, the rule indicates that appeal of a partial judgment may be taken immediately or at the conclusion of the case and only must be taken immediately where partial judgment totally disposes of the case as to any party. Fla. R. App. P. 9.110(k); Croteau v. Operator Service Company of South Florida, Inc., 721 So. 2d 386 (Fla. 4th DCA 1998); see also Mendez v. West Flagler Family Association, Inc., 303 So. 2d 1 (Fla. 1974). When final summary judgment was granted as to Count II, Count III still remained, and as previously noted, both counts are interrelated.