21 Fla. L. Weekly Supp. 399d
Online Reference: FLWSUPP 2105WILLInsurance — Personal injury protection — Small claims — Summary disposition — On appeal of summary disposition of small claims case, issue is not whether trial court erred by finding absence of genuine issue of material fact, but whether trial court abused its discretion by finding there was no triable issue — No merit to argument that medical provider’s affidavit in support of reasonableness of medical bill is insufficient to support summary disposition because it fails to address every factor mentioned in section 627.736(5)(a) — Statute does not mandate that consideration be given to every factor — No error in rejecting affidavit of litigation adjuster filed in opposition to summary disposition where affidavit was conclusory and self-serving — Further, trial court did not err in determining that litigation adjuster lacked sufficient personal knowledge to render opinion on reasonableness of charges
UNITED AUTOMOBILE, INSURANCE COMPANY, a Florida corporation, Appellant, v. HALLANDALE OPEN MRI, LLC, a/a/o Antonette Williams, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 12-19662CACE. L.T. Case No. 11-08855CONO(73). December 11, 2013. Appeal from a Final Judgment of the County Court for the Seventeenth Judicial Circuit, Broward County, Stephen P. DeLuca, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel, Miami, for Appellant. Dean A. Mitchell, Ocala, for Appellee.
RECEDED FROM in part. FLWSUPP 2502MCNU (State Farm Mutual Auto Ins. co. v. Margate Pain and Rehabilitation, Inc., CACE 14-010367 (AP, 3-31-2017)
Cert. Denied. 39 Fla. L. Weekly D1883c
(Before STREITFELD, GATES, and PHILLIPS, JJ.)
(STREITFELD, Judge.)
OPINION
Appellant, United Automobile Insurance Company (“United”), brings this appeal from the trial court’s entry of final judgment pursuant to the entry of summary disposition in favor of Appellee, Hallandale Open MRI, LLC (“Open MRI”). This Court has jurisdiction to consider the appeal pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A) and section 26.012(1), Florida Statutes. Having carefully considered the briefs filed by the parties, the record on appeal and applicable law, we affirm the decision of the trial court.Facts
On August 8, 2011, Open MRI, as assignee of Antonette Williams (“Williams”), filed a one-count breach of contract action against United seeking to recover personal injury protection (“PIP”) benefits pursuant to an insurance policy issued by United to Williams. (R. 1-6). United answered the complaint and asserted an affirmative defense that the medical bill at issue was not reasonable. (Id. at 20-21).1 Specifically at issue is whether Open MRI’s charge for a lumbar MRI (CPT code 72148) in the amount of $1650.00 was reasonable.
On January 5, 2012, Open MRI filed a motion for summary disposition on the issue of the reasonableness of the charge.2 (Id. at 25-45). In support of its position that the charge for the lumbar MRI was reasonable, Open MRI filed: (1) the affidavit of the Vice President of Operations at Palms MRI, Ms. Belkys Wilson Torres (“Ms. Torres”); and (2) the deposition testimony of United’s litigation adjuster, Mr. Juan Reyes (“Mr. Reyes”). (Id. at 46). In opposition, United filed an affidavit executed by Mr. Reyes, wherein Mr. Reyes averred that Open MRI’s charge for the lumbar MRI was not reasonable.
Following a hearing, the trial court granted Open MRI’s motion for summary disposition, specifically finding that United failed to meet its burden to establish a genuine triable issue as to the reasonableness of the contested medical bill. (Id. at 110-112). In making this determination, the trial court determined the affidavit executed by Mr. Reyes to be self-serving, conclusory, lacking foundation, and inconsistent with Mr. Reyes’ later deposition testimony. (Id.). Additionally, the trial court determined that Mr. Reyes was unqualified to render an opinion as to what is a reasonable charge for a lumbar MRI conducted in 2010 based upon Mr. Reyes’ deposition testimony, whereby he revealed that he has no personal experience working for any MRI provider. (Id.). Accordingly, the trial court granted Open MRI’s motion for summary disposition and thereafter entered final judgment in favor of Open MRI. This appeal followed.Standard of Review
Both parties assert that summary disposition is akin to summary judgment, and therefore, urge this Court to apply a de novo standard of review. However, after review of Florida Small Claim Rule 7.135 (“Rule 7.135”), the court finds summary disposition is distinct from summary judgment. Rule 7.135 allows a trial judge to summarily dispose of an action “if there is no triable issue.” Fla. Sm. Cl. R. 7.135. Specifically, the rule provides that “[a]t pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.” Id. (emphasis added). In deciding whether there is a triable issue, the trial court is given broad authority to determine whether there is a triable issue. Accordingly, Rule 7.135 permits a trial judge to weigh the evidence submitted by the parties in support of and in opposition to summary disposition, reviewed for abuse of discretion. The court is not inclined to set forth a list of the evidence that a trial court may consider when presented with a motion for summary disposition, but leave the issue to the discretion of the lower court.
When reviewing a trial court’s decision upon summary disposition, this Court applies an abuse of discretion standard. Under Florida law,
[d]iscretion . . . is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).Analysis
On appeal, United argues that the court committed various errors in granting summary disposition to Open MRI. First, United contends that Open MRI did not meet its initial burden of showing the absence of a genuine issue of material fact. As noted above, the issue on review is not whether the lower court erred by finding the absence of a genuine issue of material fact, but whether the lower court abused its discretion by finding there was no triable issue.
Next, United argues that the affidavit of Ms. Torres only references one of the factors to be considered in determining what constitutes a reasonable charge. Under Florida law:
In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration maybe given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
§ 627.736 (5) (a), Fla. Stat. (emphasis added).
Based upon the clear wording of the above statutory provision, there is nothing in the statute that mandates that consideration be given to every factor when determining whether a service or treatment is reasonable. Rather, the statute provides that “consideration may be given” to certain factors. A review of the affidavit executed by Ms. Torres reveals that her opinion that the subject lumbar MRI at issue in the instant case was based on several statutory factors, including: (1) usual and customary charges for lumbar MRIs; (2) payments accepted by Open MRI for the same procedure; (3) trade publications; and (4) her more than twelve (12) years of personal experience in billing for MRI providers in South Florida. Since the above statute does not mandate that consideration be given to every factor, we determine that Ms. Torres’s affidavit sufficiently sets forth her opinion as to the reasonableness of the contested medical bill and that the trial court did not abuse its discretion.
United further claims that the trial court erred by failing to consider Mr. Reyes’ affidavit after making the determination that the affidavit was conclusory. After a careful review of Mr. Reyes’ affidavit, we find that the trial court did not err when it concluded that the affidavit was conclusory. It is well-settled that “conclusory self-serving statements which are framed in terms only of conclusions of law are not sufficient to” raise a triable issue and defeat summary disposition. See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a] (noting that conclusory affidavits are insufficient to withstand summary judgment). The affidavit, executed by Mr. Reyes and filed by United in opposition to Open MRI’s motion for summary disposition is conclusory, and contains self-serving statements framed in legal conclusions without any personal knowledge or factual support for Mr. Reyes’ conclusion that Open MRI’s charge for the subject lumbar MRI was not reasonable. Therefore, the court finds that the trial court did not err when it rejected Mr. Reyes’ affidavit.
Further, in light of Mr. Reyes’ deposition testimony, the court agrees with the trial court decision that Mr. Reyes is unqualified to render an opinion on whether Open MRI’s charge for the subject lumbar MRI was reasonable. Specifically, Mr. Reyes testified that: (1) he has never worked for an MRI provider; (2) he has no knowledge what hospitals in Broward County charge for MRIs; (3) he has no knowledge as to what other MRI providers located in Broward County charge for the subject procedure; and (4) he has never provided any billing or accounting services to MRI providers. Based upon the record, the court finds that Mr. Reyes lacks sufficient personal knowledge to render an opinion as to the reasonableness of a charge for the subject medical procedure. Therefore, the court finds that the trial court did not abuse its discretion. As such, the final judgment must be affirmed.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the county court’s final judgment is AFFIRMED. (GATES and PHILLIPS, JJ., concur.)
__________________
1During the course of the proceedings in the trial court, the parties stipulated to the medical necessity and relatedness of the contested medical bill. Therefore, the only issue before the trial court was whether the medical bill at issue was reasonable.
2The court notes that Open MRI’s motion was improperly titled “Motion for Partial Summary Judgment.” The record reveals that this matter was governed by Florida’s Small Claim Rules and that the parties failed to invoke Florida Rule of Civil Procedure 1.510. Therefore, Open MRI’s motion for summary disposition was governed by Florida Small Claim Rule 7.135.
* * *
