21 Fla. L. Weekly Supp. 589a
Online Reference: FLWSUPP 2106VENEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Court declines to consider opposing affidavit that was untimely filed and untimely served — Even if affidavit were considered, testimony as to amounts of fee schedules alone is insufficient to raise disputed issue of fact as to reasonableness of charges — Final judgment is entered in favor of medical provider
PLANTATION OPEN MRI, LLC (a/a/o FERNANDO VENEGAS), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-1617 COCE 53. January 2, 2014. Robert W. Lee, Judge. Counsel: Mac S. Phillips, Landau Phillips, P.A., Boca Raton, for Plaintiff. Ron Vinograd, Law Office of Maria Corvaia O’Donnell, P.A., Pompano Beach, for Defendant.
FINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on December 17, 2013, for hearing of Plaintiff’s Motion for Final Summary Judgment, and the Court, having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having a thorough review of the matters filed of record; and having been sufficiently advised in the premises, finds as follows:
Pursuant to the parties’ joint pretrial stipulation, the remaining issues in this PIP case are the reasonableness of the Plaintiff’s pricing, and whether the medical services Plaintiff provided were related to the subject car accident and medically necessary.
At the hearing, the Court determined that the unrebutted affidavit of Dr. Richard Henry submitted by the Plaintiff was sufficient to establish the Plaintiff’s prima facie case on both relatedness and medical necessity.
The Court also determined that the affidavit of Andrew Byers was sufficient to establish the Plaintiff’s prima facie case for reasonableness of the Plaintiff’s charge. On this issue, the Defendant countered with the untimely-filed and untimely-served affidavit of Oren Warren, its adjuster, who testified as to the amounts of the Medicare, Worker’s Compensation, and Tricare fee schedules. The fee schedules were not attached to Mr. Warren’s affidavit, or otherwise provided to the Court.
The Plaintiff objected to the affidavit of Oren Warren because it was submitted untimely under Rule 1.510(c), Fla.R.Civ.P., in that it was not “served [. . .] at least 5 business days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing.” The Court agrees. In this case, the Defendant did not seek a continuance of the hearing so that the Court could properly consider the untimely-filed affidavit, with an explanation as to why the affidavit was late. As a result, the Court declines to consider the affidavit of Oren Warren. See Parc Central Aventura East Condo. v. Victoria Group Services, LLC, 54 So.3d 532, 534 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D149a] (when party filed affidavit late for summary judgment hearing, trial court should not have considered the affidavit when the party failed to obtain a continuance of the hearing).
Moreover, even if the Court were to consider the affidavit of Mr. Warren, it would not create a factual issue sufficient for the Defendant to survive summary judgment. Merely providing fee schedule amounts (assuming they were properly authenticated), without more, is insufficient for an insurer to raise a disputed issue of material fact on the issue of reasonableness of price. Indeed, at a summary judgment hearing, the only evidence the Court may consider is that which shows “facts as would be admissible in evidence.” Rules 1.510(c) and (e), Fla.R.Civ.P. In this case, absent a stipulation from the Plaintiff, the defense witness could not testify concerning the amounts in the fee schedules without actually producing the fee schedules. Here, there is no such stipulation, and the Defendant did not produce the fee schedules.
The issue of the fee schedules was addressed recently by the 17th Judicial Circuit Court sitting in its appellate capacity in the case of United Automobile Ins. Co. v. Health Diagnostics of Miami, LLC, Opinion, Case No. 12-841 CACE (Dec. 16, 2013). There, the appellate court affirmed a decision of the trial court entering summary disposition on the issue of reasonableness when the defendant’s only evidence opposing the Plaintiff was the Medicare fee schedule.1 Although the Health Diagnostics case proceeded to summary disposition under the Small Claims Rules rather than the Rules of Civil Procedure, the important point relevant to the instant case is that the appellate court agreed that if the only evidence in opposition to Plaintiff on reasonableness is the Medicare fee schedule, such evidence standing alone is insufficient for a trier of fact to decide which fee is “reasonable.”
As noted previously by this Court, there is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that some evidence be presented to support the conclusion that the fee schedule amount is reasonable. Merely submitting the fee schedules does not suffice.
For the reasons stated above, the Defendant has not come forward with any admissible evidence demonstrating it paid a “reasonable” amount which would create a genuine issue of material fact. Accordingly, it is hereby
ORDERED AND ADJUDGED that final judgment be and the same is hereby entered in favor of the Plaintiff, Plantation Open MRI, LLC (a/a/o Fernando Venegas), located at 4373 West Sunrise Boulevard, Plantation, Florida 33313, and against the Defendant, State Farm Mutual Automobile Insurance Company, located at One State Farm Plaza, Bloomington, Illinois, 61710 and whose current Florida Personal Injury Protection (Auto-PIP) contact is Jeff Mercado, PIP Demand Notice Unit, P.O. Box 106140, Atlanta, Georgia, 30348, in the amount of $567.262 as damages, plus $24.48 as prejudgment interest for a total amount of $591.74, which shall bear interest at the rate of 4.75%, for which sum let execution issue forthwith.
The Court hereby expressly reserves jurisdiction of those issues relating to Plaintiff’s entitlement to attorneys’ fees and costs and the amount thereof.
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1The Appendix to the Answer Brief filed on April 34, 2013 contains the transcript of the hearing that resulted in the judgment on appeal. On page 7 of the transcript of the September 28, 2011 hearing, the following exchange took place:
THE COURT: [. . .] What do you have by way of any evidence that is suggesting that the amount charged in this case was not reasonable?
[DEFENSE COUNSEL]: Your Honor, the reliance on the Medicare fee schedule. Our position is that the Medicare fee schedule is reasonable. And the jury would make the determination, basically the trier of fact would make a determination as to what’s reasonable, whether it’s the charge that’s submitted by the Plaintiff or the amount paid by the Defense [. . .].
THE COURT: Anything else?
[DEFENSE COUNSEL]: No, Your Honor.
2$1,850 (Plaintiff’s charge) at 80% = $1,480. $1,480 minus $912.74 (prior payment) = $567.26.
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