23 Fla. L. Weekly Supp. 1043a

Online Reference: FLWSUPP 2310ROYInsurance — Personal injury protection — Coverage — Medical expenses — PIP policy that gives insurer unbridled discretion to consider various factors found in reasonable amount method of reimbursement and in permissive fee schedule method of reimbursement does not provide clear and unambiguous notice of intent to limit reimbursement to fee schedule — Approval by Office of Insurance Regulation does not validate policy and notice or render them invulnerable to judicial invalidation

DNA CENTER, LLC, a.a.o. Helen Roy, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015-021342-CONS, Division 78. February 24, 2016. Honorable Shirley Green, Judge. Counsel: Kimberly P. Simoes, Simoes Law Group, P.A., Deland, for Plaintiff. Brooke L. Boltz and Zea R. McDonnough, for Defendant.

FINAL JUDGMENT ON COMPETINGMOTIONS FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on February 17, 2016 concerning: (1) the Plaintiff’s “Motion for Final Summary Disposition” dated December 6, 2015; and (2) the “Defendant’s Motion for Summary Disposition and Memorandum of Law” dated January 26, 2016. The Court, having considered the motions, the record, the admissible evidence, and the arguments of counsel, and being otherwise advised in the premises,

ORDERED AND ADJUDGED as follows:

A. Introduction

1. This case involves a claim for personal injury protection (“PIP”) insurance benefits.

2. The material facts are undisputed, and for the reasons expressed below, the Court concludes as a matter of law that the Plaintiff is entitled to a judgment in its favor against the Defendant.

B. Undisputed Material Facts

3. On December 18, 2014, Helen Roy (the “Insured Patient”) was involved in an automobile accident and suffered resulting injuries. At that time, the Insured Patient was covered by the Defendant’s PIP insurance policy, known as “Policy Form 9810A,” which was originally issued to the Insured Patient on February 1, 2013.

4. The Defendant’s Policy Form 9810A includes the following applicable provisions concerning PIP coverage:

We will pay in accordance with the No-Fault Act properly billed and documented reasonable charges for bodily injury to an insured caused by an accident resulting from the ownership, maintenance, or use of a motor vehicle as follows:

1. Medical Expenses

We will pay 80% of properly billed and documented medical expenses . . . .

See, Policy Form 9810A at p. 14. The policy defines the term “medical expenses” as follows:

Medical Expensesmeans reasonable chargesincurred for medically necessary, surgical, X-ray, dental, and rehabilitative services. . . . .

See, Policy Form 9810A at p. 4. The policy defines the term “reasonable charges” as follows:

Reasonable Charge, which includes reasonable expense, means an amount determined by us to be reasonable in accordance with the No-Fault Act, considering one or more of the following:

1. usual and customary charges;

2. payments accepted by the provider;

3. reimbursement levels in the community;

4. various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages;

5. the schedule of maximum charges in the No-Fault Act,

6. other information relevant to the reasonableness of the charge for the service, treatment, or supply; or

7. Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, if the coding policy or payment methodology does not constitute a utilization limit.

See, Policy Form 9810A at p. 5.

5. On December 30, 2014, the Insured Patient began receiving medical treatments from the Plaintiff. Starting on January 19, 2015, the Defendant received billing submissions from the Plaintiff for various treatments rendered to the Insured Patient, based on an assignment of benefits. However, instead of paying 80% of the amount of the Plaintiff’s charges, the Defendant’s payments were based on 80% of 200% of the participating physician fee schedule of Medicare Part B. Each of the Defendant’s explanation of review forms associated with the Plaintiff’s services in this case included the following explanation:

Our payment for this service is based upon a reasonable amount pursuant to both the terms and conditions of the policy of insurance under which the subject claim is being made as well as the Florida No-Fault Statute, which permits, when determining a reasonable charge for a service, an insurer to consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service. The payment for this service is based upon 200% of the Participating Level of Medicare Part B fee schedule for the locale in which the services were rendered.

6. The Plaintiff challenged the sufficiency of the Defendant’s payments made for specific dates of service of February 18, 2015, February 19, 2015, February 24, 2015, February 27, 2015, and April 30, 2015. When the Defendant failed to make full payment in response to the Plaintiff’s pre-suit demand letter, the Plaintiff filed the instant lawsuit concerning the charges corresponding to those dates of service.

C. Legal Analysis

7. Since 1971, the PIP statute has always included provisions which explained that PIP insurers are required to pay the “reasonable” amount of the insured’s medical expenses, and those provisions are commonly known as the “Reasonable Amount Method”¹ or the “fact dependent method” of calculating PIP benefits. Starting in 2008, the Florida Legislature added a second payment calculation method, which is optional and permissive, which states that PIP insurers “may limit reimbursement to 80 percent of [an enumerated] schedule of maximum charges” and that method it is commonly referred to as the “Fee Schedule Method.”²

8. This lawsuit involves the version of the PIP statute, which was amended in 2012 and took effect on January 1, 2013. It is important to note that version of the PIP statute renumbered the subsections of the Reasonable Amount Method and the Fee Schedule Method. So, before January 1, 2013, the Reasonable Amount Method was found in subsections (1)(a) and (5)(a)1, but it is now found in subsections (1)(a) and (5)(a). Before January 1, 2013, the Fee Schedule Method was found in subsections (5)(a)2-5, but it is now found in subsections (5)(a)1-5.

9. As of January 1, 2013, the version of the PIP statute at issue in this case, includes the following provisions which pertain to the Reasonable Amount Method and the Fee Schedule Method:

627.736 Required personal injury protection benefits; exclusions; priority; claims. —

[The “Reasonable Amount Method” is found in (1)(a) and (5)(a), and states:]

(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection . . . to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:

(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services if the individual receives initial services and care . . . .

. . . . .

(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —

(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. However, such a charge may not exceed the amount the person or institution customarily charges for like services or supplies. In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be 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.

[The “Fee Schedule Method” is found in (5)(a)1-5, and states:]

1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.

b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.

c. For emergency services and care as defined by s. 395.002 provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.

d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.

e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.

f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).

(II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.

(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.

However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.

2. For purposes of subparagraph 1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supplies, or care is rendered and for the area in which such services, supplies, or care is rendered, and the applicable fee schedule or payment limitation applies to services, supplies, or care rendered during that service year, notwithstanding any subsequent change made to the fee schedule or payment limitation, except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year.

3. Subparagraph 1. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 1. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider is entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes. However, subparagraph 1. does not prohibit an insurer from using the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services, supplies, or care if the coding policy or payment methodology does not constitute a utilization limit.

4. If an insurer limits payment as authorized by subparagraph 1., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.

5. An insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.

§627.736(1)(a) and (5)(a)1-5, Fla. Stat. (2012-2015) (emph. added). In this case, the Plaintiff performed the type of non-emergency non-hospital services described as “all other medical services” by Section 627.736(5)(a)l.f(I) of the Fee Schedule Method.

10. The Reasonable Amount Method generally generates the highestlevel of PIP benefits that a health care provider can recover under the PIP statute,³ while the Fee Schedule Method generally generates the minimum or lowest level of PIP benefits that a health care provider can recover under the PIP statute.⁴

11. The Fee Schedule Method is optional. However, in order to rely on the Fee Schedule Method, a PIP insurance company must clearly and unambiguously choose that method in its insurance policy. In Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,141 So.3d 147, 157 (Fla. 2013) [38 Fla. L. Weekly S517a], the Florida Supreme Court explained that PIP insurers have “a choice in dealing with their insureds as to whether to limit reimbursements based on the Medicare fee schedules or whether to continue to determine the reasonableness of provider changes for necessary medical services rendered to a PIP insured based on the factors enumerated in [former] section 627.736(5)(a)1 [now (5)(a)].” (Emph. added). In that case, the Florida Supreme Court approved Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], which held that Section 627.736 “allows an insurer to choose between two different payment calculation methodology options” and “anticipates that an insurer will make a choice.” (Emph. added). Most recently, the Florida Fourth District Court of Appeal held:

To elect a payment limitation option, the PIP policy must do so “clearly and unambiguously.” A policy is not sufficient unless it plainly and obviously limits reimbursement to the Medicare fee schedules exclusively. The policy cannot leave [the PIP insurance company’s] choice of reimbursement method in limbo . . . .The policy must make it inescapably discernable that it will not pay the “basic” statutorily required coverage and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.

Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19, 25-26 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a] (emph. added). In Orthopedic Specialists, the Fourth District also noted that the PIP insurance company’s attempt to elect the Medicare Fee Schedule was improper because the insurance company “reserve[d] a plethora of options for itself. . . .” Id. at 25, n. 2.⁵

12. Simply stated, a PIP insurer cannot “alternate between the two methodologies at its whim.” University Community Hospital v. Mercury Ins. Co. of Fla., 21 Fla. L. Weekly Supp. 89a (Fla. 13th Jud. Cir., Hillsborough County Ct., September 16, 2013) (PIP policy which cited to fee schedule method but did not choose that method alone but allowed insurer to choose between the two different methods at insurer’s discretion was “not permissible” because insurance company “may not alternate between the two methodologies at its whim as [the] policy allows”).

13. In this case, the definition of “reasonable charge” in Policy Form 9810A is a hybrid of various factors found in the Reasonable Amount Method of Section 627.736(5)(a) and the Medicare Fee Schedule Method of Section 627.736(5)(a)1-5, and specifically states that the Defendant will consider “one or more” of those various factors. As revealed by the following table, paragraph 1, 2, 3, 4, and 6 of the definition correspond to elements of the Reasonable Amount Method listed in Section 627.736(5)(a). However, paragraphs 5 and 7 of the definition correspond to elements of the Fee Schedule Method found in Section 627.736(5)(a)1 and 3:

Policy Form 9810A’s definition of “reasonable charge”	Reasonable Amount Method’s definition of reasonable in 627.736(5)(a)	Fee Schedule Method provisions of 627.736(5)(a)1-5
Reasonable Charge, which includes reasonable expense, means an amount determined by us to be reasonable in accordance with the No-Fault Act, considering one or more of the following:
1. usual and customary charges;	“consideration may be given to evidence of usual and customary charges”
2. payments accepted by the provider;	“payments accepted by the provider involved in the dispute”
3. reimbursement levels in the community;	“reimbursement levels in the community”
4. various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages;	“various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages”
5. the schedule of maximum charges in the No-Fault Act,		“The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges. . .” §627.736(5)(a)1.
6. other information relevant to the reasonableness of the charge for the service, treatment, or supply; or	“other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply”
7. Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, if the coding policy or payment methodology does not constitute a utilization limit.		“subparagraph 1. does not prohibit an insurer from using the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services, supplies, or care if the coding policy or payment methodology does not constitute a utilization limit.”§627.736(5)(a)3.

14. In addition to the above-quoted provisions of Policy Form 9810A, the Defendant’s use of a hybrid method to provide itself with unbridled discretion to pick and choose at its whim between various elements of the Reasonable Amount Method and the Fee Schedule Method, is further confirmed by the Defendant’s explanation of review which states that the Defendant can “consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service” but in this particular instance, payment for the service provided by the Plaintiff was “based upon 200% of the Participating Level of Medicare Part B fee schedule for the locale in which the services were rendered.”

15. Because the Defendant’s Policy Form 9810A purports to define a “reasonable charge” in a manner which purports to give the Defendant unbridled discretion to consider “one of more” of the various factors found in the Reasonable Amount Method of Section 627.736(5)(a) and the Medicare Fee Schedule Method of Section 627.736(5)(a)1-5, the policy establishes an unauthorized hybrid method in violation of case law, such as Virtual Imaging, Kingsway Amigo, Orthopedic Specialists, and University Community Hospital.

16. In its motion, the Defendant attempts to avoid the implications of controlling case law by suggesting that its hybrid method is authorized by virtue of Section 627.736(5)(a)5, Florida Statutes (2012-2015). This Court disagrees.

17. Section 627.736(5)(a)5 states the following:

5. An insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.

(Emph. added).

18. Section 627.736(5)(a)5 pertains to a single isolated issue, and that issue is whether a PIP insurance policy has provided its insureds with “a notice” of the intention to rely on the Fee Schedule Method “at the time of issuance or renewal.” In this case, the Defendant has not produced such “a notice” that was allegedly provided to the Insured Patient at the time of issuance or renewal of her PIP policy. In any event, the Plaintiff is not challenging the sufficiency of “a notice” allegedly provided by the Defendant to the Insured Patient, but rather is challenging provisions within the policy itself. Moreover, providing such a notice would not avoid the glaring defects of the language found within Policy Form 9810A itself.

19. The Defendant contends that Policy Form 9810A complies with the Florida Office of Insurance Regulation (“OIR”) Informational Memorandum OIR-12-02M and was approved by the OIR. As explained below, any alleged consistency with the OIR Informational Memorandum or any alleged OIR approval of the Defendant’s notice or its policy does not render the insurance policy invulnerable from judicial invalidation.

20. Mere approval by the OIR of “a notice” does not automatically validate the contents of the insurance policy itself. See, e.g., Gonzalez v. Associates Life Ins. Co., 641 So.2d 895(Fla. 3d DCA 1994); Kaufman v. Mutual of Omaha Ins. Co., 681 So.2d 747(Fla.3d DCA 1996) [21 Fla. L. Weekly D171a]. In Gonzalez, the insurance policy did not comply with a statutory notice provision, and the insurance company argued that its notice was sufficient because it was approved by the former Florida Department of Insurance (now known as the OIR). The appellate court rejected that argument and held that the insurance company’s attempt to limit coverage pursuant to the insufficient notice was unenforceable:

Consequently, because the language is not conspicuous as required by Section 627.429(5)(d)2.c., the . . . limitation is unenforceable. [Fn1]

[Fn 1] [The insurance company] argues that because the Department of Insurance pre-approved the form of the policy issued here, we should affirm. Regardless of what deference we should accord to the Department’s determination, we find that as a matter or law, its approval of the policy form in this case was clearly erroneous, and that reversal is required.

Gonzalez, 641 So.2d at 896-897. In Kaufman, the appellate court held that an insurance policy violated a statute by failing to select between two statutorily permissible alternative clauses, and instead, “impermissibly combine[d]” the two alternatives and “selected elements of both.” Id., 681 So.2d at 749. The insurer argued that its insurance policy form was approved the former Florida Department of Insurance (i.e., OIR’s predecessor agency), but the appellate court held that the agency’s approval could not override the explicit terms of a statutory requirement. Id. at fn. 4.

21. Moreover, it is well-settled that state agencies, such as the OIR, have no authority to interpret or enforce contracts, or adjudicate contract disputes, and that such authority and jurisdiction is vested exclusively in the judiciary. See, e.g., Peck Plaza Condominium v. Div. of Florida Land Sales and Condominiums, Dept. of Business Reg., 371 So.2d 152, 153-54 (Fla. 1st DCA 1979) (state agency had no authority to interpret and then to enforce its interpretation of provisions of a contract because jurisdiction to interpret such contract was vested solely in the judiciary); Biltmore Construction Co. v. State, Department of General Services, 363 So.2d 851, 853-854 (Fla. 1st DCA 1978) (agencies have no power to order specific performance of a contract, which only a court in exercise of its equitable powers can decree); Vincent J. Fasano, Inc. v. School Bd. of Palm Beach , 436 So.2d 201, 202 (Fla. 4th DCA1983) (school board had no authority to administratively adjudicate contractor’s breach of contract claim). Surely, the Defendant is not suggesting that subsection (5)(a)5 of the PIP statute delegates cart blanche authority to the OIR to determine the meaning and legal sufficiency of any and all provisions of a PIP insurance policy and to circumvent the exclusive jurisdiction of the court system to determine contract disputes. Such a situation would surely violate the constitutional separation of powers doctrine. See, e.g., Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978) (Article II, Section 3 of the Florida Constitution expressly limits the exercise by a member of one branch of any powers appertaining to either of the other branches of government, and the legislature is not free to re-delegate such powers to an administrative body).

22. Thus, even if Section 627.736(5)(a)5 did purport to delegate any authority to OIR to determine the validity of insurance policies, any determination of that agency would certainly not be immune from judicial review. See also, State v. Bender, 382 So.2d 697, 700 (Fla. 1980)(“any delegation of legislative authority is open to judicial review”). To the contrary, the courts still retain the full jurisdiction to determine whether an administrative agency has performed in accordance with the Legislature’s mandate. Askew, 372 So. 2d at 918-919. See also, §86.111, Fla. Stat. (existence of another adequate remedy does not preclude a judgment for declaratory relief, and the court has power to give “full and complete equitable relief”); §120.73, Fla. Stat. (“Nothing in this chapter shall be construed to . . . divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86”).

23. Further, it is important to note that, as revealed by the OIR’s “Informational Memorandum OIR 12-02M,” that agency has disclaimed responsibility for conducting any determination of whether a PIP insurer has legal authority to adopt a particular payment methodology it is PIP insurance policy. The OIR memorandum specifically states that the agency “will commit to review filings submitted for this purpose . . . provided that the insurer has only submitted one endorsement in the file and that one endorsement only contains language to implement the notice requirement” and explains that “All form filings are subject to the standard form review process of Section 627.410, Florida Statutes.” In addition, the OIR memorandum also contains disclaimers which state, “Ultimately, it is the insurer’s responsibility to develop its own language after researching the issue, reviewing its contract forms, and conferring with its legal staff.” In this case, the Defendant’s policy forms do not only present the single isolated issue which OIR indicated that it would review, and it has not been established whether the OIR approved “a notice at the time of issuance or renewal” or that the Defendant’s policy has been approved by the OIR for purposes of satisfying Section 627.410 or for the limited purposes of Section 627.736(5)(a)5 or for some other purpose.

24. Because the Defendant has not clearly and unambiguously elected a single payment methodology, the Defendant is not lawfully authorized to rely on the Fee Schedule Method and the Plaintiff’s claim defaults back to the Reasonable Amount Method.

D. Damages

25. The Defendant does not dispute that the medical services rendered to the Insured Patient are reasonably related to the accident and medically necessary.

26. The Plaintiff filed the affidavit of its office manager and billing manager, Joan Ortolani in support of its claim for damages. Ms. Ortolani has significant experience with and personal knowledge of the usual and customary charges in the community, as well as the reasonable amounts typically charged and reimbursed for the services rendered. In her opinion, the Plaintiff’s charges are reasonable, usual and customary. This Court finds Ms. Ortolani’s affidavit sufficient to meet the Plaintiff’s prima facie burden of proof as to the reasonableness of the charges. Based on Ms. Ortolani’s affidavit, the Defendant owes the following amounts:

Date of Service	CPT Code	Reasonable Amount Charged by Plaintiff	Amount paid by Defendant	Reasonable Amount Due
Feb. 18, 2015	97032	80.00 (2 units)	76.56	3.44
	97112	70.00	66.42	3.58
	97140	60.00	59.46	.54
	97026	15.00	12.24	2.76
Feb. 19, 2015	97032	80.00 (2 units)	76.56	3.44
	97112	70.00	66.42	3.58
	97140	60.00	59.46	.54
	97026	15.00	12.24	2.76
Feb. 24, 2015	97032	80.00 (2 units)	76.56	3.44
	97112	70.00	66.42	3.58
	97140	60.00	59.46	.54
	97026	15.00	12.24	2.76
Feb. 27, 2015	97032	80.00 (2 units)	76.56	3.44
	97112	70.00	66.42	3.58
	97140	60.00	59.46	.54
	97026	15.00	12.24	2.76
April 30, 2015	95910	400.00	388.58	11.42
	95885	120.00	114.78	5.22

27. In opposition, the Defendant filed the affidavit of Dr. Michael Propper on February 15, 2016. On February 16, 2016, the Plaintiff objected to Dr. Propper’s affidavit and moved to strike it. The Court hereby sustains the Plaintiff’s objections and strikes the affidavit. The Court finds that the opinions contained in Dr. Propper’s affidavit are not based on sufficient facts or data to be considered by this Court under the standard described in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Section 90.702, Florida Statutes. See, e.g., AIA Management Services, LLC, a.a.o. Farano Muselaire v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 835c (Miami-Dade County Ct. Jan. 28, 2015) (citing to several decisions finding that Dr. Propper’s affidavits did not satisfy §90.702 and are otherwise inadmissible); Hallandale Open MRI, LLC a/a/o Artemese Bryant v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 646b (Broward. County Ct. Dec. 10, 2014) (holding that Dr. Propper’s knowledge of what certain payors pay does not make him qualified to state a billed amount is unreasonable); Coastal Radiology, LLC a/a/o Daniel Fornes v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 396a (Broward County Ct. Jul. 17, 2014) (concluding that Dr. Propper’s affidavit was inadmissible under §90.702). It is well-settled that a trial court cannot consider inadmissible evidence in deciding a motion for summary judgment. See, e.g., Rose v. ADT Sec. Services, Inc., 989 So.2d 1244, 1249 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2162b]. For these reasons and the other reasons provided in the Plaintiff’s motion to strike, the Court concludes that Dr. Propper’s affidavit is inadmissible and fails to create a genuine issue of material fact regarding the reasonableness of Plaintiff’s charges.

E. Conclusion

28. Based on the foregoing, the Plaintiff’s “Motion for Final Summary Disposition” dated December 6, 2015 is hereby GRANTED, and the “Defendant’s Motion for Summary Disposition and Memorandum of Law” dated January 26, 2016 is hereby DENIED.

29. It is therefore adjudged that the Plaintiff shall recover from the Defendant the total sum of $46.34 ($57.92 @ 80%), plus prejudgment interest of $1.31, for a total amount of $47.65, which shall bear post-judgment interest at the rate of 4.75% a year, for which let execution issue.

30. The Court reserves jurisdiction to determine the Plaintiff’s claim for reasonable attorneys’ fees and costs.

__________________

¹See, e.g., MRI Associates of St. Pete d.b.a. Saint Pete MRI, a.a.o. Fikreta Jakupai v. Geico Indemnity Company, 20 Fla. L. Weekly Supp. 814a, ¶15 (Fla. 13th Jud. Cir, Hillsborough County Court, May 30, 2013) (referring to the “reasonable amount method”).

²See, e.g., Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 158 (Fla. 2013) [38 Fla. L. Weekly S517a] (referring to “the permissive Medicare fee schedule method”).

³See, e.g., §627.736(5)(a), Fla. Stat. (health care provider “may charge the insurer and injured party only a reasonable amount pursuant to this section” and “such a charge may not exceed the amount the person or institution customarily charges”). See also, Geico Indemnity Co. v. Physicians Group, LLC, a.a.o., Paul Androski, 47 So.3d 354, 356 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D1850a] (noting that amount payable for surgical procedure was $10,800 under the Reasonable Amount Method, but was merely $1,122 under the Medicare Fee Schedule Method).

⁴See, Nationwide Mutual Insurance Company v. AFO Imaging, Inc., 71 So.3d 134, 137 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (the Medicare Fee Schedule Method of Section 627.736(5)(a)2 is “utilized in computing the minimumamount” payable by PIP insurance) (emph. added).

⁵Although the Fourth DCA certified that its decision is in conflict with the First DCA’s decision in Allstate Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., __ So.3d __, 2015 WL 1223701, 40 Fla. L. Weekly D693b (Fla. 1st DCA Mar. 18, 2015), the conflict pertains to a different issue and the First DCA decision does not decide the issue of whether a PIP policy must chose one payment methodology to the exclusion of the other.