21 Fla. L. Weekly Supp. 628b
Online Reference: FLWSUPP 2107LEZA
NOT FINAL VERSION OF OPINION
Subsequent Changes at 22 Fla. L. Weekly Supp. 515aInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — No abuse of discretion in allowing testimony by insurer’s expert about general reimbursement levels in county which referred to fee schedules — Attorney’s fees — Proposal for settlement — Abuse of discretion to deny insurer’s motion for attorney’s fees and costs where there was no showing that insurer’s $100 proposal for settlement was not made in good faith
BRENDA LEZAMA, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 12-174 AP and 12-207 AP. (Consolidated ) L.C. Case No. 02-021243 CC 05. April 28, 2014. An Appeal from a decision of the County Court for Miami-Dade County, Florida. Counsel: Marlene Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellant. Lara J. Edelstein, Office of the General Counsel United Automobile Insurance Company, for Appellee.
(Before LEON M. FIRTEL, GILL S. FREEMAN, and ANTONIO ARZOLA, JJ.)
[Editor’s note: Clarified to limit decision to specific facts of case and PIP statute in effect at time policy was issued. FLWSUPP 2205LEZA]
(FREEMAN, J.) This case involves a claim for PIP benefits that dates back to 2002. Appellant Brenda Lezama was injured in an October 2001 car accident and sued Appellee United Automobile Insurance Company (“United Auto” or insurer) in 2002 for PIP benefits to pay her medical providers.
The case first went to trial in June 2006. At the close of trial, Ms. Lezama was granted a directed verdict and a final judgment of $7,517.33 was entered in her favor. United Auto appealed, and the circuit court appellate division reversed the trial court and awarded a new trial. The Court said the trial court abused its discretion by refusing to continue the trial midway through when United Auto’s expert became unavailable due to patient medical emergencies.
At the second trial in April 2009, the jury returned a verdict in favor of Ms. Lezama in the amount of $4,341.00. The Appellant got a second final judgment in the principal amount of $3,773.07 (80% of $4,341.00), pursuant to statute. On appeal, the circuit court appellate division reversed, finding that the trial court abused its discretion by excluding Dr. Millheiser’s testimony regarding “peer review” on the basis that the peer review was not obtained prior to United Auto’s denial of benefits. The Court appears to have relied on the recently released decision of United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b], which held that such a report could be obtained at any time.
Prior to the third trial, Appellant moved in limine to preclude Dr. Millheiser’s testimony, challenging his competency to testify that the accident was low impact as he had no independent knowledge as such. Also, she argued that he had no factual basis to testify as to the reasonableness of the medical bills. Lezama argued that Dr. Millheiser could not rely on Medicare, Medicaid, or managed care rates in determining amounts of bills as none of those things are relevant in PIP cases. The trial court spent considerable time reviewing the numerous objections to Dr. Millheiser’s deposition testimony, which was over 400 pages long. The trial court found that a proper predicate was laid for some of the testimony, and thus, a portion of Dr. Millheiser’stestimony concerning managed care schedules was permitted. The court ruled that Dr. Millheiser’s testimony regarding a low impact accident, based upon his review of an inadmissible police report, and any managed care fee schedules, as the predicate for his opinions as to the reasonableness of the bills, would be excluded. He was only supposed to testify, over Appellant’s objection, that managed care “is general reimbursement in Dade County.” Ms. Lezama’s treating physician, Dr. Pedro Hernandez, also testified. He said his bills totaled $9,255.00 and that the treatment rendered had been medically necessary. He also said the bills were consistent with the usual and customary billing in the community.
Dr. Millheiser’s testimony was presented through videotaped deposition. He said he charged $20 per modality, which is based on managed care reimbursement, which is the usual and customary method in Dade County. Managed care reimbursement referred to insurance HMO and PPO schedules, and also schedules from Medicare, Medicaid, or worker’s compensation, which are all public information.
At the close of trial, Ms. Lezama moved for a directed verdict on the reasonableness of her medical bills on the basis that Dr. Millheiser’s testimony was not competent because his opinions were based solely on managed care fee schedules which the trial court had disallowed. The trial court denied the motion. The jury returned a verdict in favor of Ms. Lezama, finding that the medical services were medically necessary and awarding bills in the amount of $680.00, a figure consistent with Dr. Millheiser’s testimony based on managed fee schedules. Ms. Lezama’s motion for a new trial was denied. United Auto moved to apply the $2,000 deductible to the verdict amount, resulting in a negative recovery by Ms. Lezama and a final judgment in favor of United Auto. This appeal followed.
United Auto filed a motion for entitlement to attorney’s fees and a motion to tax attorney’s fees, interest, and costs. The insurer had served the plaintiff with a proposal for settlement ($100), which was not accepted within 30 days of receipt. Based on the jury verdict and the application of the $2,000 deductible, the insurer argues that it is entitled to an award of attorney’s fees. The plaintiff argued that the $100 nominal offer bore no reasonable relationship to the damages incurred, and the trial court agreed. The Court denied United Auto’s motion for entitlement to attorney’s fees and motion to tax attorney’s fees, interest and costs. The insurer appealed and the appellant/plaintiff cross-appealed.
Theissue for our consideration is whether the trial court erred in allowing testimony by Dr. Millheiser, about general reimbursement levels in Dade County for modalities, to include mention of fee schedules from insurers, Medicare, Medicaid and worker’s compensation. Further, we must consider whether the trial court erred in denying the insurer’s motion for attorney’s fees and costs pursuant to §768.79, Fla. Stat. and Fla. R. Civ. P. 1.442. We conclude that the trial court did not err in allowing Dr. Millheiser’s testimony, as it was within the range of his expertise. However, the Court did err in denying United Auto’s motion for attorney’s fees and costs under the applicable law.
We conclude that Dr. Millheiser’s testimony, in which he stated that he reviewed managed care schedules in formulating his opinion as to the reasonableness of the charges was legal, was within the trial court’s ruling. A motion in limine will not be disturbed absent an abuse of discretion. Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D494a]. Here, the proper predicate was laid for Dr. Millheiser’s testimony as to his opinion on the reasonableness of the bills. His review of the managed care schedules does not disqualify his testimony and opinion.
Reasonableness is generally a jury question and in a PIP case, it is the claimant’s burden to prove the bills are reasonable. Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. Sections 90.702-.706, Fla. Stat. (2013), govern the admissibility of expert testimony. Dr. Millheiser clearly qualifies as an expert witness. Based on his experience, practice, and after looking at various fee schedules, he was permitted to testify that he believes that $20 per modality is a reasonable amount. Further, at the time the medical bills were provided to the insurer, the applicable statute did not include any factors to be considered in determining whether or not a charge for a medical treatment was reasonable.
We agree with the insurer that the trial court abused its discretion in denying the insurer’s motion for attorney’s fees and costs pursuant to §768.79, Fla. Stat. and Fla. R. Civ. P. 1.442. The $100 offer made by the insurer, while nominal, was made in good faith as the insurer argues it had a reasonable basis to believe that its exposure was nominal and that the claimant had only a 50/50 chance of prevailing in litigation. Under §768.79(1), Fla. Stat., a defendant is entitled to an award of reasonable costs and attorney’s fees if the defendant’s offer of judgment is not accepted and if the judgment ultimately obtained is one of no liability or is at least 25% less than the offer. See also Disney v. Vaughen, 804 So. 2d 581, 583 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D223a]. Even a nominal offer may be made in good faith. State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a] (offers are not suspect merely because they are nominal). Also, the burden of proving that the proposal for settlement was not made in good faith is upon the offeree, or the non-moving party. Sharaby v. KLV Gems Co., Inc., 45 So. 3d 560 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2300a]. Here, Lezama made no showing that the offer was not made in good faith. The trial court abused its discretion in finding that the nominal offer was not made in good faith and denying entitlement to attorney’s fees and costs.
In conclusion, we affirm the final judgment below. Accordingly, we reverse the order denying the insurer’s (the cross-appellant’s) motion for entitlement to attorney’s fees and costs as we conclude the nominal offer of judgment was made in good faith. We also deny Appellant Lezama’s motion for appellate attorney’s fees and grant Appellee United Auto’s motion for appellate attorney’s fees, and remand to the trial court for an amount determination. (JUDGES FIRTEL and ARZOLA concur.)
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