20 Fla. L. Weekly Supp. 683a
Online Reference: FLWSUPP 2007TMORInsurance — Personal injury protection — Coverage — Medical expenses — Where policy provides that insurer will pay 80% of reasonable expenses, insurer cannot reimburse medical expenses at 200% of Medicare Part B fee schedule without any analysis of reasonableness of amounts charged
HALLANDALE OPEN MRI, LLC, as assignee of Tramaine Morgan, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-000439 CONO 71. April 15, 2013. Louis H. Schiff, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Margate, for Plaintiff. Scott Danner, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR PARTIAL SUMMARY JUDGEMENT
This cause came before the court, on March 22, 2013, after due notice to the parties, on Plaintiff’s Motion for Summary Judgment on the issue of the reasonableness of the charge of the MRI bill which is the subject of this action. The amount in controversy is $459.70. After review of the pleadings, the affidavits of Ms. Torres and Ms. Terrelong-Redway, the evidence, and the rest of the record, and after hearing argument of counsel for the parties, the court finds no genuine issue of material fact issue and hereby grants Partial Summary Judgment in favor of the Plaintiff and against the Defendant on this issue.
Hallandale Open MRI, as assignee of Tramaine Morgan, sued State Farm Mutual Automobile Insurance Company (State Farm) for breach of a contract of personal injury protection benefits under the Florida No Fault law. The Defendant’s policy which is in the record requires the Defendant to pay 80% of all reasonable expenses. The Plaintiff billed $1,650 for the MRI in question which took place in 2011 in Broward County. State Farm Mutual received the bill and paid 200% of Medicare at 80% and not 80% of the billed amount. The Defendant’s policy does not state it will pay claims based on 200% of medicare specifically or even generally.
The amount tendered by the Defendant was not accepted as payment in full by Hallandale Open MRI who, after serving a demand letter, sued State Farm Mutual Auto for breach of contract for the balance. The Defendant filed an answer with affirmative defenses. The matter is ripe for Summary Judgment as there are no pending motions to strike, to supplement the record, and there has been sufficient time to complete reasonable discovery. The court considered all arguments made by counsel in ruling on this matter.
Hallandale moved for Partial Summary Judgment accompanied by an affidavit of Belkys Wilson Torres, Vice President of Operations for another MRI provider, Palms MRI located in Broward County, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $1650 is reasonable. Ms. Wilson Torres has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI, and reimbursements for MRI as her facility charged $1707.33 for the same MRI and Palms MRI bills were paid without reductions.
In opposition to Hallandale Open MRI’s motion and affidavit, State Farm Mutual Auto filed the affidavit of its claims representative, Monica Terrelong-Redway, which was served on February 26, 2013.
Pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, Summary Judgment is appropriate when there are no genuine issues of material facts that exist and the moving party is entitled to judgment as a matter of law. If a party moving for Summary Judgment presents competent evidence showing undisputed material facts, that party is entitled to Summary Judgment unless the non-moving party can then produce competent evidence showing that material facts are at issue. Central Florida Machinery Co., Inc. v. Williams, 424 So. 2d 201 (Fla. 2nd DCA 1983). The bare allegations of the pleadings MAY NOT provide the basis of creating a factual issue. Id. at 202 (emphasis added). A Defendant may not defeat a motion for Summary Judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Reflex, N.V. v. UMET Trust, 336 So. 2d 473 (Fla. 3rd DCA 1976). It is not sufficient for the opposing party to merely assert that an issue does exist. Harvey Building, Inc. 175 So. 2d 780 (Fla. 1965). After movant demonstrates non-existence of a material issue, the non-moving party must make a showing, aside from his own pleadings, that the fact issue can be generated. Soper v. Stine, 184 So. 2d 892 (Fla. 2nd DCA 1966). Where the proponent of expert testimony offers such expert testimony, the opponent of such expert testimony, in order to create a factual issue for the trier of fact, must (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proffered expert opinion. Rose v. Dwin, 736 So. 2d 532 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c]. The Defendant did not depose the Plaintiff’s expert and, as such, did not impeach the Plaintiff’s expert.
The court finds that Hallandale Open MRI met its burden of establishing the reasonableness of the MRI charge based on the affidavit of Ms. Wilson Torres which explains why $1650 is a reasonable charge for an MRI conducted in 2011 in Broward County. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a genuine issue of material fact.
The court finds State Farm Mutual Auto did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Ms. Terrelong-Redway stating the billed amount is unreasonable is self-serving, conclusory and lacks foundation or the basis for her opinion that the amount charged was unreasonable. A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Mastec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id.
There is no evidence Ms. Terrelong-Redway is the adjuster that paid the claim. The affidavit fails to include any range of what other MRI providers charge for the same service during the time in question for South Florida, what MRI providers accept as payment in full, a factual basis to establish she is qualified to give any opinions on what is a reasonable charge for an MRI in South Florida in 2011, an analysis of how she arrived at her opinions or any of the specific elements specifically set forth in F.S. §627.736(5)(a)(1) as alleged in the affirmative defense found at paragraph 9 of the amended answer dated May 16, 2012.
There is no record evidence that Ms. Terrelong-Redway is qualified to give any opinions in this case on what is a reasonable charge for an MRI. The affidavit makes it clear Ms. Terrelong-Redway’s only experience involves working as a claims representative for State Farm for over 9 years. She has no experience in the MRI business or billing for an MRI company. She did not state what a single MRI provider charged for an MRI in 2011 to establish the charged amount would be unreasonable. Ms. Terrelong-Redway did not state the range of what other MRI providers charged for MRIs in 2011 in South Florida. She did not address reimbursement levels in the community other than a self serving conclusory statement that State Farm has paid similar claims at 200% of the applicable Medicare Part B Fee schedule without any additional facts or details such as whether the providers accepted 200% of medicare as payment in full. She did not address evidence of the usual and customary charges and payments accepted by the provider involved in the dispute, or any other relevant information as to what would be a reasonable charge. There is no record evidence State Farm performed an analysis, at any time or any kind, to determine what is a reasonable charge for this service. See New Smyrna Imaging v. State Farm, Case number 2012-20804 CONS 71 (Fla. Volusia County Court 2013).
The Defendant’s affidavit only contains a conclusion that Hallandale Open MRI’s charge is not reasonable based on the fact the Plaintiff’s charge is in excess of 200% of Medicare she and had no other basis to support her opinion. She consulted no experts, surveys or publications. She did not include any MRI providers that accept 200% of medicare as payment in full from a PIP insurer. She presented no evidence that the billed amount is unreasonable for a PIP insurer or why a billed amount in excess of 200% of medicare is unreasonable. Further, she did not attach any applicable documents to her affidavit which could support her statement as to what is a reasonable charge. The Defendant is not permitted to invoke the payment limitations of §627.736(5)(a)(2) without complying with the provisions of Kingsway v. Ocean Health, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] as §627.736(5)(a)(2) is a payment limitation.
The fact that the PIP statute has a limitation of 200% of medicare under F.S. §627.736(5)(a)(2) is irrelevant as the Defendant has not alleged it paid pursuant to §627.736(5)(a)(2) and 200% of medicare is not a factor to consider within F.S. §627.736(5)(a)(1) which has specific factors. Likewise, whether the Defendant paid a reasonable amount is not an issue for consideration for the jury as the Plaintiff has the burden to prove its charge is reasonable. The Defendant does not have to prove it paid a reasonable amount.
Had the legislature wanted courts to consider 200% of medicare in an analysis of what is a reasonable charge for a medical provider it would have expressly provided for this provision as the legislature specifically addressed 200% of medicare in §627.736(5)(a)(2). See SOCC v. State Farm, 95 So.3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]. Thus, based on Ms. Terrelong-Redway’s affidavit there is simply no competent admissible evidence to create a question of fact that the charge was unreasonable. The fact that Medicare allows less than the amount billed by the Plaintiff in this case is not sufficient to create an issue of fact that the Plaintiff’s charge was unreasonable as to price. The Defendant’s affidavit fails to set forth a basis to explain why the Plaintiff’s charge is unreasonable. State Farm Mutual has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self serving conclusory affidavit of its claims representative who gives no basis for her conclusion that the charge is unreasonable. Health Diagnostics v. USAA, 20 Fla. L. Weekly Supp. 292b (Fla. Broward County Court 2012), B&D Chiro v. Liberty, 19 Fla. L. Weekly Supp. 1091a (Fla. Broward County Court 2012).
State Farm’s reliance on Medicare is not persuasive as Medicare is not insurance. Medicare is social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:
But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope
Accordingly, Hallandale Open MRI’s Motion for Partial Summary Judgment as to whether its charge is reasonable is hereby granted.
* * *
