21 Fla. L. Weekly Supp. 837a
Online Reference: FLWSUPP 2108AYERInsurance — Personal injury protection — Summary disposition — Reasonableness of charges — Medical provider met burden of proving its charge for MRI was reasonable — Opposing affidavit of non-expert which was self-serving, conclusory and lacked foundation for affiant’s opinion is insufficient to create genuine issue of material fact — Summary judgment is granted in favor of provider
HALLANDALE OPEN MRI, LLC, as assignee of Richard Ayer, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-002964 CONO 73. April 7, 2014. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. M. Toledo, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY DISPOSITION
This cause came before the court, on April 7, 2014, after due notice to the parties, on Plaintiff’s Motion for Summary Disposition. The amount in controversy is $459.70. After review of the pleadings, the affidavits of Ms. Uziel, Dr. Spanier and Mr. Spell, the evidence, the request for admissions and the responses and the rest of the record, and after hearing argument of counsel for the parties, the court finds no triable issue according to Rule 7.135 issue and hereby grants Summary Disposition in favor of the Plaintiff and against the Defendant on this issue.
Hallandale Open MRI, as assignee of Richard Ayer, 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 in Small Claims Court. 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 2012 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. The matter is ripe for Summary Disposition 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 Summary Disposition based on a detailed and competent affidavit of Ms. Uziel, billing supervisor, who, based on substantial showing, avers that the amount of Plaintiff’s charge of $1650 is reasonable. Ms. Uziel has personal experience and knowledge of the MRI industry and what is a reasonable charge for an MRI. The court finds the affidavit of Ms. Uziel and the Defendant’s responses to Plaintiff’s request for admissions meets the Plaintiffs prima facie burden to establish the Plaintiff’s charge is within the range of reasonable.
As it relates to medical necessity and related, the Plaintiff filed a valid affidavit from Dr. Spanier. The Defendant filed nothing in opposition so the Plaintiff is entitled to summary disposition as to medical necessity and related without further discussion.
Pursuant to Rule 7.135 the Plaintiff would be entitled to summary disposition if there is no triable issue. See United Auto v. Hallandale Open a/a/o Antonette Williams, 12-19662 CACE (Fla. 17th Cir. Court 2013) [21 Fla. L. Weekly Supp. 399d]. The Defendant may not defeat a motion for Summary Disposition 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. It is not sufficient for the opposing party to merely assert that an issue does exist.
The court finds that Hallandale Open MRI met its burden of establishing the reasonableness of the MRI charge based on the affidavit of Ms. Norma Uziel which explains why $1650 is a reasonable charge for an MRI conducted in 2012 in Broward County and the Defendant’s responses to Plaintiff’s request for admissions. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a triable issue.
The court finds State Farm Mutual Auto did not meet its burden to establish a triable issue as to the reasonableness of the charge for the Plaintiff’s MRI. The affidavit of Mr. Spell 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. Matec, 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.
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 2012, an analysis of how he arrived at his opinions, and he did not attach any of the documents he relied upon.
There is no record evidence that Mr. Spell is qualified to give any opinions in this case on what is a reasonable charge for an MRI. This court agrees with the numerous judges around the State that Mr. Spell is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.956.
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 Mr. Spell’s affidavit there is simply no competent admissible evidence to create a triable issue 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 a triable issue 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 Mr. Spell.
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 Summary Disposition is hereby granted.
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