19 Fla. L. Weekly Supp. 730b
Online Reference: FLWSUPP 1909MARRInsurance — Personal injury protection — Summary judgment — Where insurer did not file affidavit or present any evidence to contradict medical provider’s evidence that services provided to insured were reasonable, necessary and related to accident and that bill for services was reasonable in amount, provider is entitled to judgment as matter of law
BIGLEY & ASSOCIATES, P.A., d/b/a PREMIER ORTHOPEDICS OF ORLANDO, as assignee of Tisela Marrero, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, a corporation authorized and doing business in the state of Florida, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2010-SC-008772. May 1, 2012. Deborah B. Ansbro, Judge.
FINAL JUDGMENT
This matter came before the court on February 13, 2012, on Plaintiff’s motion for summary judgment and the Court having heard argument of counsel, and having examined the Court file along with the summary judgment evidence, the Court finds:
1. Tisela Marrero was injured in a motor vehicle accident which occurred on November 9, 2009, and was at that time covered by a policy of automobile insurance issued by the Defendant (“the Policy”).
2. The Policy states in pertinent part that it “will pay in accordance with the Florida Motor Vehicle No-Fault Law, personal injury protection benefits to or for an “insured” who sustains “bodily injury.” The insurance contract further states and defines medical expenses as follows:
Subject to the limits shown in the [Policy] Schedule or Declarations, personal injury protection benefits consist of the following: Medical Expenses, 80% of reasonable expenses for “medically necessary” medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services; and prosthetic devices. Medical expenses also include necessary remedial treatment and services recognized and permitted under state law for an “insured” who relies upon spiritual means through prayer alone for healing in accordance with that “insured’s” religious beliefs. However, the payment of these medical expenses shall not affect the determination of what other medical expenses are “medically necessary.”
3. On January 13, 2010, Tisela Marrero received health care services from the Plaintiff for injuries sustained in the accident.
4. The charges for the health care services provided to Tisela Marrero by Plaintiff on January 13, 2010, total $500.00.
5. Tisela Marrero executed an assignment of benefits which assigned to the Plaintiff her rights, title, and interest under the personal injury protection (PIP) coverage of her insurance policy to the extent of the services rendered.
6. In response to the Plaintiff’s bill for treatment rendered to Tisela Marrero on January 13, 2010, the defendant did not pay 80% of the amount billed, which would have been $400.00, but instead issued payment of only $291.84.
7. The Defendant based its reduced payment on its assertion that it was entitled to pay pursuant to the permissive fee schedules as set forth in § 627.736(5)(a)2.f., Fla. Stat. (2008).
8. Plaintiff brought this action and the Defendant, consistent with its basis for reduction of the Plaintiff’s bill, raised as an affirmative defense that it was entitled to pay pursuant to the permissive fee schedules as set forth in § 627.736(5)(a)2.f., Fla. Stat. (2008).
9. The Plaintiff filed its motion for summary judgment, alleging, inter alia, that pursuant to the binding authority of Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], r’hrg. den., July 5, 2011; State Farm Fla. Ins. Co. v. Nichols, 21 So. 3d 904 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2275b]; and U.S. Security Insurance Company v. Professional Medical Group, Inc., No. 3D10-2881 (Fla. 3d DCA, November 2, 2011) [36 Fla. L. Weekly D2384b], the Plaintiff was entitled to summary judgment as to this affirmative defense.
10. Prior to the hearing on Plaintiff’s motion for summary judgment, the Defendant withdrew its “permissive fee schedule” affirmative defense, leaving the reasonableness of the Plaintiff’s bill as the only remaining issue before the court.
11. However, the Plaintiff’s motion for summary judgment also alleged that the health care services provided to Tisela Marrero were reasonable, necessary and related to the accident and that the bill for the services rendered was reasonable in amount and within the usual, customary, and reasonable amounts for such services within the geographic region in which the services were rendered.
12. Plaintiff’s allegations concerning the medical necessity of the services and reasonableness of the charges are factually supported by the affidavit of Plaintiff’s corporate representative, Dr. Michael Bigley, which Plaintiff timely filed with the Court as summary judgment evidence, and therefore the Plaintiff has provided sufficient record evidence to support its motion for summary judgment.
13. Summary judgment is appropriate and should be rendered when the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue of material fact and that the Plaintiff is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
14. A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once the party moving for summary judgment tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979), citing, Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla. 1965); Farrey v. Bettendorf, 96 So. 2d 889 (Fla. 1957); see also Fla. R. Civ. P. 1.510. It is not sufficient for party opposing summary judgment to merely assert there exists a genuine issue of material fact; the opposing party must present admissible evidence to support its claim. Magma Trading Corp. v. Lintz, 727 So. 2d 377 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D616a]; Kolnick v. Fountainview Ass’n, 737 So. 2d 1192 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1695b].
15. It is not sufficient in defense of a motion for summary judgment to rely on the paper issues created by the pleadings, but it is incumbent upon the party moved against to submit evidence to rebut the motion for summary judgment and affidavits in support thereof or the court will presume that the opposing party has gone as far as he could and a summary judgment could be properly entered. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966), citing Hardcastle v. Mobley, 143 So. 2d 715, 717 (Fla. Dist. Ct. App. 3d Dist. 1962).
16. The Defendant did not file any affidavits or other summary judgment evidence or otherwise present any record evidence to contradict the Plaintiff’s evidence that the services provided to Tisela Marrero were reasonable, necessary and related to the accident and that the bill for the services was reasonable in amount. Therefore, there is there is no genuine issue of material fact for a jury to consider and the Plaintiff is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
17. Accordingly, summary judgment for the Plaintiff is GRANTED, and,
IT IS ADJUDGED that the Plaintiff, Bigley & Associates, P.A., d/b/a Premier Orthopedics of Orlando, as assignee of Tisela Marrero, shall recover from the Defendant, Liberty Mutual Insurance Company, the sum of $108.16, plus pre-judgment interest as established by F.S. 55.03 for the period January 13, 2010, through the date of entry of this judgment, which shall bear post-judgment interest at the legal rate of 4.75% for 2012, and thereafter pursuant to F.S. 55.03, for which let execution issue FORTHWITH.
The Court specifically retains jurisdiction to determine Plaintiff’s entitlement to, and the amount of, attorney fees and costs taxable against the Defendant upon timely motion by the Plaintiff for 30 days.
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