21 Fla. L. Weekly Supp. 697c
Online Reference: FLWSUPP 2107MILFInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Countervailing expert testimony on reasonableness of charges creates genuine issue of material fact precluding entry of summary judgment — Fact that insurer paid medical provider’s bill at 200% of Medicare fee schedule does not preclude insurer from disputing reasonableness of charges
TERRY P. ROTHSTEIN D.C., P.A. (AAO SAINT HIBBERT MILFORT), Plaintiff(s) v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County, County Civil Division. Case No. 502012SC022255XXXXMB, Division RB. April 10, 2014. Ted Booras, Judge.
ORDER DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
This cause came before the Court upon Plaintiff’s Motion for Summary Judgment. Upon review of the file, arguments of counsels, and legal precedent, the Court finds as follows:
The law concerning summary judgment is that the moving party has the burden to prove the absence of any genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The Holl Court went on to hold that a trial court should not enter summary judgment unless the facts are so crystallized that nothing remains but questions of law. Id. The Fourth District held that a court must draw every possible inference in favor of the party against whom a summary judgment is sought. Gonzalez v. B & B Cash Grocery Stores, 692 So.2d 297 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1081a].
In the instant case, which involves a PIP claim, Defendant asserts that the reasonableness of the fees charged are in dispute and filed an affidavit of their expert in opposition to Plaintiff’s Motion. In the instant case we have countervailing expert testimony, which in and of itself, creates a genuine issue of material fact. Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993); Fell v. Carlin, 6 So.3d 119 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D794a]; and, Hazelrig v. Beuning, 629 So.2d 271 (Fla. 2d DCA 1993).
The Court does not accept Plaintiff’s argument that because Defendant paid Plaintiff’s bill at 200% of Medicare, that Defendant is now precluded from arguing reasonableness of the fees. The Florida Supreme Court, in GEICO v. Virtual Imaging, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a] stated in footnote 8, “[a]lthough we agree that there are two payment methodologies for satisfying the PIP statute’s coverage mandate, we emphasize that we do not conclude that limiting reimbursement pursuant to section 627.736(5)(a)2. would never satisfy this reasonable medical expenses coverage mandate. In fact, that is the very reason we rephrased the certified question in this case.”
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is hereby DENIED.
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