18 Fla. L. Weekly Supp. 160a
Online Reference: FLWSUPP 1802GALA
Insurance — Personal injury protection — Summary judgment — Error to enter summary judgment in favor of provider on issue of reasonableness of bills where peer review affidavit stating that portion of fees were excessive and mildly high creates genuine issue of material fact — No error in entering summary judgment in favor of provider on insurer’s argument that provider, which paid treating physician on percentage basis ,did not lawfully render services and engaged in illegal fee splitting
PROGRESSIVE CASUALTY INSURANCE COMPANY, a Florida Corporation, Appellant, v. GALABOW-CHIROPRACTIC CLINIC, INC., d/b/a GALABOW CHIROPRACTIC CENTER a/a/o HARVEY NARIN, APLG OF VICTORIA NARIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-263 AP, 09-349 AP. Case Below: 06-22112 SP 23 (01). Hearing On: August 25, 2010. November 19, 2010. On Appeal from the County Court for Miami-Dade County, Myriam Lehr, Judge. Counsel: Douglas H. Stein, Seipp & Flick, for Appellant. Steven M. Singer, Law Offices of Steven M. Singer, PA., for Appellee.
(Before RAMIREZ, ROTHENBERG, and REYES, JJ.)
(REYES, Judge.) The Defendant/Appellant, Progressive Casualty Insurance Company (“Insurer”) appeals a final summary judgment in favor of Plaintiff/Appellee, Galabow-Chiropractic Clinic, Inc. (“Provider”) as assignee of Harvey Narin, APLG of Victoria Narin (“Insured”). In the underlying action, Provider sued Insurer for failure to pay Personal Injury Protection (“PIP”) benefits. An issue in dispute was whether the bills for the treatment were reasonable. In opposition to the Provider’s motion for summary judgment on the issue of reasonableness, the Insurer filed the affidavit of Clifton D. Okman, D.C, to support its defense that some of the bills for treatment rendered were not reasonable.
Summary judgment is properly granted where 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 a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Pennco, Inc. v. Meritor Sav., 617 So. 2d 739, 739 (Fla. 2d DCA 1993). Non-existence of a genuine issue of material fact is required to grant summary judgment. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
In the instant case, Insurer claims that there are issues of material fact that remain in dispute in this case which preclude summary judgment. The Insurer’s Peer Review affidavit suggests that a portion of the fees were excessive and “mildly high.” This dispute as to whether these bills were reasonable is a genuine issue of material fact that exists to be determined at trial. On the matter of reasonableness of the bills, this Court Reverses the trial courts findings on summary judgment.
Insurer also argues that Provider had not lawfully rendered any services to Insured. Dr. Spanier, the treating physician, was paid on a percentage basis and was an independent contractor of Provider. Insurer’s argument is that this relationship between the Provider and Dr. Spanier amounts to illegal fee splitting. As to this matter, the Court affirms the trial court’s findings on summary judgment.
The Final Judgment Awarding Plaintiff’s Attorney’s Fees and Costs is REVERSED based upon the partial reversal of summary judgment. Appellee’s Motion for Attorney’s Fees, pursuant to § 627.428(1) of the Florida Statutes is GRANTED, in part. Appellant’s Motion for Attorney’s Fees pursuant to proposal for settlement is GRANTED, in part, contingent on meeting the criteria set forth in § 768.79 of the Florida Statutes. On remand, the Attorneys fees should be adjusted to fairly compensate for work reasonably related to the matter on which each party prevailed.
As such, this matter is REVERSED, in part, AFFIRMED, in part, and REMANDED to the trial court for proceedings consistent with this opinion. (RAMIREZ and ROTHENBERG, JJ., concur.)
