23 Fla. L. Weekly Supp. 370a
Online Reference: FLWSUPP 2304PEREInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary disposition — Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of charge for chiropractic services where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charge
CORAL GABLES CHIROPRACTIC, PLLC, as assignee of Maribel Perez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-10449 CONO 70. June 23, 2015. Jon D. Fry, Judge. Counsel: Natalie Giachos, Boyar & Freeman, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, House Counsel of United Automobile Ins. Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR SUMMARY DISPOSITION
This CAUSE having come before this Court on June 15, 2015, after due notice to the parties, on Plaintiff’s Motion for Final Summary Disposition and in Support thereof and this Court having considered the pleadings, evidence in the record, the Affidavits of Dr. Davin Barbanell, D.C. and Bradley Simon, D.C., and argument of counsel, its hereupon,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Disposition is hereby GRANTED for the following reasons:
The Plaintiff sued United Automobile Insurance Company (United) for breach of a contract of personal injury protection benefits under the Florida No Fault law in Small Claims Court. The Plaintiff billed $8,750.00 for services rendered from 6/9/10 – 12/13/10 in Miami-Dade County. United received the bills and paid 200% of Medicare at 80% and not 80% of the billed amount. It is undisputed the Defendant’s policy requires the Defendant to pay 80% of a patient’s medical bills that are reasonable as to price, medically necessary and related to a car crash. The amount tendered by the Defendant was not accepted as payment in full by Coral Gables Chiropractic, PLLC, who, after serving a demand letter, sued United for breach of contract for the balance.
There were no affirmative defenses raised in this case and the Defendant has stipulated that the services were related to the accident and medical necessary. Accordingly, the only remaining issue is whether the Plaintiff’s charges are reasonable.
Plaintiff moved for Summary Disposition based on a detailed and competent Affidavit of Dr. Davin Barbanell, D.C. who, based on substantial showing, avers that the amount of Plaintiff’s charges of $8,750.00 is reasonable. Dr. Barbanell has personal experience and knowledge of the Chiropractic industry and what is a reasonable charge for chiropractic services. The court finds the Affidavit of Dr. Barbanell meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is within the range of reasonable.
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 Antoneete 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 Coral Gables Chiropractic, PLLC met its burden of establishing the reasonableness of its charges based on the affidavit of Dr. Barbanell which explains why the charges totaling $8,750.00 for the services rendered is a reasonable charge for the services rendered in 2010 in Miami-Dade County. Since the Plaintiff met its burden, the burden now shifts to the Defendant to establish a triable issue.
The court finds United did not meet its burden to establish a triable issue as to the reasonableness of the charge for the Plaintiff’s services. The Affidavit of Bradley Simon, D.C. is legally insufficient, self-serving, conclusory and lacks foundation or the basis for his opinion as to a reasonable rate for the services rendered. A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Mastec, 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. Additionally, a party presenting an expert opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. See Pan Am Diagnostic Services, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp 937a (Broward Cty. Ct. 2013).
In his Affidavit, Dr. Simon provided a chart of the Plaintiff’s charges for the CPT codes at issue and the reimbursement rate he feels is reasonable. However, the Affidavit is void of any mention that he has any experience or knowledge of billing PIP automobile insurance carriers; it fails to set forth a basis to explain why the Plaintiff’s charge is unreasonable or even indicate that Plaintiff’s charges are unreasonable; it does not include ranges of what other chiropractic providers charge for the same services during the time in question for South Florida; it does not state what other chiropractic providers accept as payment in full; what PIP insurers pay when the insurer pays based on a reasonable amount; what out of network health insurers pay; it does not have an analysis of how he arrived at his opinions; and he did not attach any supporting documentation showing how he arrived at the amounts he allowed.
The Court finds that Dr. Simon’s opinions are not based on sufficient facts or data and they are not the product of reliable principles and methods. The Court further finds that Dr. Simon has not reliably applied the principles and methods to the facts of this case. Accordingly, Dr. Simon is not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.956.
As there is no competent admissible evidence to create a triable issue that the Plaintiff’s charges were unreasonable and United has not rebutted the record evidence or offered any proof that the Plaintiff’s charges are unreasonable, Plaintiff’s Motion for Summary Disposition is hereby granted for the reasons set forth above and argued at the hearing.
