23 Fla. L. Weekly Supp. 977a
Online Reference: FLWSUPP 2309CASSInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Medical provider is entitled to summary judgment as to reasonableness of MRI charge based on insurer’s technical admissions — Opposing affidavits filed by insurer do not preclude summary judgment in favor of provider on reasonableness of charge where affidavits are conclusory and lack foundation for opinions — Insurer cannot challenge medical necessity and relatedness of services where insurer made partial payment for services and did not assert lack of relatedness and necessity as affirmative defense — Section 627.736(4)(b), which provides that insurer may assert that claim was unrelated or not medically necessary at any time, does not allow insurer to challenge relatedness and necessity where there is no record evidence of insurer having made any such assertion in case
HEALTH DIAGNOSTICS OF ORLANDO, LLC, d/b/a STAND-UP MRI OF ORLANDO, as assignee of Yolene Cassamajor, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-009390 (70). February 11, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Kathryn M. Winkler, Kirwan, Spellacy & Danner, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
This cause came before the Court, on November 10, 2015,1 after due notice to the parties, on Plaintiff’s Motion for Final Summary Judgment. The amount in controversy for PIP benefits (and/or Med Pay benefits) is a total of $273.98 and at the time of the hearing, this case had been pending for 1,121 days.
After careful consideration, the Court finds no genuine issue of material fact and hereby grants Summary Judgment in favor of the Plaintiff as to reasonableness, relatedness, and medical necessity.
Analysis and Findings of Fact re: Reasonableness
The Plaintiff filed this small claims lawsuit against the Defendant for breach of a contract of personal injury protection benefits (and/or med pay) under the Florida No-Fault law. It is undisputed that the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. Reasonableness is a range, not a set number and the Plaintiff argues its charge is within the range of what is reasonable.
The Florida Supreme Court approved jury instructions provide that the issue in a PIP case is whether the charge for the service is reasonable. The jury instructions further provide what evidence may be considered in deciding whether the amount of a charge is reasonable: (1) usual and customary charges and payments accepted by the provider involved in the dispute; (2) reimbursement levels in the community; (3) reimbursement levels in various federal and state medical fee schedules applicable to automobile coverages; and (4) any other evidence relevant to the reasonableness of the charges.
In this case, the Defendant received the Plaintiff’s bill of $1600 for each MRI and paid it based on 200% of the Participating Level of Medicare Part B fee schedule for the region in which the services were rendered. There is no record evidence that the Defendant used any factors other than Medicare when it issued payment to the Plaintiff. It is undisputed that, as a matter of law, the Defendant’s policy of insurance does not permit it to pay claims based solely on 200% of Medicare.
The matter is ripe for Summary Judgment as there has been more than sufficient time for the parties to diligently take advantage of discovery opportunities and to complete all reasonable discovery and any pending discovery would not be material to the issue(s) currently before the Court.
The Court begins its analysis regarding Plaintiff’s prima facie case by pointing out that Plaintiff propounded its first request for admissions on January 29, 2013.2 Plaintiff filed its motion for final summary judgment on June 9, 2015. On July 17, 2015, the Court entered an order on case management and imposing time limitations.3 Plaintiff filed its notice of hearing for its summary judgment on September 25, 2015, for the hearing to be conducted on November 10, 2015. It wasn’t until November 09, 2015 — 1,014 days after Plaintiff propounded the request for admissions — that Defendant finally responded. Although Defendant simultaneously filed its motion for relief from technical admissions, this motion was filed after a court ordered cutoff to file motions and was never set for hearing. Based on Defendant’s technical admissions alone, the Court could stop its analysis here and the Plaintiff would prevail. Even if the Court disregarded the technical admissions, Plaintiff still prevails based on the analysis set forth below.
In this case, Plaintiff moves for Summary Judgment based on the sufficient and competent affidavit of Carmen Rodriguez, a corporate representative, who, based on substantial showing, avers that the amount of Plaintiff’s charge is reasonable.
Carmen Rodriguez has significant personal experience and knowledge of the billing and collections aspect of the MRI industry and what is a reasonable charge for an MRI. She has reviewed over 50,000 claims. She is aware of what other MRI centers charge in the community and what the Plaintiff has been paid by PIP insurers that pay a reasonable amount (i.e., 80% to 100% of Plaintiff’s charge). Plaintiff also relies on four publications: Physician’s Fee and Coding Guide, Physicians Fee Reference, Ingenix and Medical Fees in the U.S. See Fla. Stat. §90.903 (17) and United Auto. Ins. Co. v. Hallandale Open MRI, LLC (a/a/o Antonette Williams), 21 Fla. L. Weekly Supp. 399d (Fla. 17th Jud. Cir. Appellate Ct. 2013). Second tier certiorari was denied by the Fourth District Court of Appeal. See 39 Fla. L. Weekly D1883c. This opinion has been cited numerous times statewide to support Courts’ decisions to grant summary judgment/disposition in PIP cases.
In addition to the affidavit and evidence that Plaintiff relies upon as indicated in its motion for summary judgment, the Plaintiff also relies upon the law set forth in Pan Am Diagnostic Svcs., Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013) where Judge Lee set forth the following:
A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Insurance. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Insurance. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a Plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A Plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Insurance. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J, 677 So.2d at 937-38; East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Insurance. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court. 2001).
In this case, Plaintiff’s bill was attached to Defendant’s expert’s affidavit; the bill was produced by the Defendant in response to Plaintiff’s request to produce; the bill was produced by the Plaintiff in response to Defendant’s request to produce; the bill was referenced in the payment log produced by the Defendant; the bill was the subject of two separate explanation of reviews that Defendant produced; the bill was attached to the affidavit of Mary Downes dated March 15, 2013 and was authenticated by Ms. Downes4; and the bill was referenced in Plaintiff’s response to Defendant’s interrogatories.
The Court finds that the Plaintiff met its burden of establishing the reasonableness of the MRI charge. See Hallandale Open MRI, LLC (a/a/o Antonette Williams) [21 Fla. L. Weekly Supp. 399d]. Since the Plaintiff has met its burden, the burden of proof shifts to the Defendant to establish a genuine issue of material fact.
It is well settled that Defendant may not defeat a Motion for Summary Judgment 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. See e.g., Hialeah Medical Assoc a/a/o Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir. App. Ct. 2014). It is not sufficient for the opposing party to merely assert that a genuine issue of material fact exists.
In this case, the Defendant filed the affidavit of Tina White and Dr. Michael Foley, M.D. in opposition to Plaintiff’s motion for final summary judgment. The Court finds the affidavit of Tina White to be self-serving, conclusory, devoid of sufficient facts or data, and lacks reliable principles, methodology, foundation or a sufficient basis for his opinions that the amount charged was unreasonable. See e.g., Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward Cty. Ct. 2013). The Court finds the affidavit of Dr. Foley stating that Plaintiff’s billed amount is unreasonable is also self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay, and lacks reliable principles, methodology, foundation or a sufficient basis for his opinions that the amount charged was unreasonable. His opinion is being rejected because the methodology is unsupported, he is not relying on relevant factors, and thus, he would be considered unqualified to give ultimate opinions on the reasonableness of the MRI charges. There was no data attached to his affidavit. The documents that were attached to the affidavit were not sworn to or certified. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]. His resume fails to establish any qualifications to opine as to price of this MRI. The affidavit fails to establish he is competent to testify to matters stated therein as required by Florida law. The affidavit refers to a date of service that is not at issue in this case. The affidavit does not sufficiently explain how Dr. Foley is familiar with reasonable charges in the Orlando vicinity. Parts of Dr. Foley’s affidavit refer to Miami-Dade County rather than Orlando. Dr. Foley fails to include any range of what other MRI providers charge for the same service during the time in question. The affidavit does not contain the amounts that other providers accepted as full payment for the charge involved. See State Farm Mut. Auto. Ins. Co. v. Hallandale Open MRI, LLC (a/a/o Richard Ayer), Case No.: CACE14-011565(AP) (Fla. 17th Jud. Cir. App. Ct. 2015).
It is not sufficient to create a genuine issue of material fact simply because the Defendant found one radiologist that decided to compare Plaintiff’s charge to the lowest non-PIP payors in the community. In fact, despite Dr. Foley’s heavy reliance on the lowest payors in the community, he acknowledges in paragraph 29 of his affidavit that the “reimbursement rate of PIP insurers unequivocally and substantially exceeds the amount paid by all other third-party payors such as Medicare, Medicaid, Worker’s Compensation, HMO health insurers, PPO health insurers.” Dr. Foley goes one step further and opines in paragraph 40 that PIP reimbursement rates are “viewed as the maximum service charge that can be deemed reasonable in the community.” Dr. Foley’s logic is inherently flawed and Defendant is unable to point to a single Judge in Broward County that supports Dr. Foley’s ultimate opinion. See e.g., Windsor Imaging (a/a/o Roneil Morris) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Fla. Broward Cty. Ct. 2011) (Judge Lee explains that “The No-Fault Act set the floor with respect to the minimum reimbursement under Florida Statute 627.736(5)(a)2.f. which states: ‘. . . may not be less than [200% of] the allowable amount under the participating physicians schedule of Medicare Part B for 2007 . . .’ ”).
Based on the above and the record, there is no evidence that Dr. Foley is qualified to give any opinions in this case on what a reasonable charge is for the MRI at issue. His statement of what the Florida Workers’ Compensation Healthcare Reimbursement Manual allows, what Medicare allows, what the Non-physician Practitioner Fee Schedule allows, and what some health insurers allow is simply insufficient and unmoving.
Dr. Foley is not qualified to opine as an expert on what a reasonable charge is according to Fla. Stat. §90.702. His testimony is not based upon sufficient facts or data. His testimony is not the product of reliable principles. Since there is a lack of sufficient facts or data and there is a lack of reliable principles and methods there can be no reliable application of them. See Giaimo v. Florida Autosport, 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). His opinion based on his “extensive experience” is nothing more than pure opinion and therefore, unmoving. See Perez v. Bellsouth, 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]. As such, the Court rejects his “expert” opinions and his opinion will be considered as lay witnesses by this Court.
Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). See also United Auto. Ins. Co. v. Miami Neurology Rehabilitation Specialists (a/a/o Maria Broche), 19 Fla. L. Weekly Supp. 799a (11th Jud. Cir. App. 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702).
Thus, based on Dr. Foley’s affidavit, there is simply no competent admissible evidence to create a genuine issue of material fact that the charged amount was unreasonable. The fact that another MRI center charged less and Medicare, Workers’ Compensation, and health insurance allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a genuine issue of material fact that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So. 2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b] and State Farm v. New Smyrna Imaging (a/a/o Ryan Campbell), Case No.: 2013-10005-APCC (Fla. 7th Jud. Cir. Ct. 2014) [22 Fla. L. Weekly Supp. 508a]. Dr. Foley’s affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable.
State Farm has not rebutted the evidence in the record or offered any proof that Plaintiff’s charge is unreasonable, other than the self-serving, conclusory affidavit of Dr. Foley. Finding that the Plaintiff’s charge is unreasonable based on what Medicare and private insurance allow would require the improper stacking of inferences as Medicare pays what the government sets forth without any regard to what is a reasonable amount for a particular service. While this Court will draw all possible reasonable inferences of material fact in favor of the Defendant, this Court cannot find the inference that since Medicare, Workers’ Compensation, and health insurance pay less than the billed amount, there is a genuine issue of material fact as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record. The purpose of PIP insurance is prompt and speedy payment of medical claims.
Finally, State Farm’s reliance on Medicare is not persuasive, as Medicare has been held to be social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the Court held:
But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.
In the appellate decision of Hialeah Medical Assoc (a/a/o Lexcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir. App. Ct. 2014) the appellate court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.” In State Farm v. Florida Wellness (a/a/o Alonso), 13-022796 (Fla. 17th Jud. Cir. App. Ct. 2015) [23 Fla. L. Weekly Supp. 88a] the appellate court in Broward affirmed the trial judge whom refused to consider an affidavit from Darrell Spell wherein he opined a charge was unreasonable based on Medicare and Medicaid. Here, Dr. Foley does not create a genuine issue of material fact because his opinions are not based on relevant or sufficient data and he has performed no analysis or investigation to justify his opinions.
As such, the Court finds that State Farm did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI.
Accordingly, Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to reasonableness for the reasons set forth above and on the record, in the Plaintiff’s motion for summary judgment, and in the documents relied upon by the Plaintiff.
Analysis and Findings of Fact re: Medical Necessity and Relatedness
In this case, Defendant allowed the services billed by the Plaintiff, but reduced the amount allowed when making partial payment based on the Medicare fee schedule. Pursuant to both the Defendant’s policy of insurance and the Florida No-Fault statute, each set forth below, only charges for medically necessary and related treatment are covered medical expenses. It is axiomatic that Defendant’s payment, which if made pursuant to the terms of its policy of insurance, represents a determination by Defendant that Plaintiff’s services were “covered services”.
Defendant’s policy of insurance states, in relevant part, the following:5
What We Pay
1. Medical Expenses. 80% of all reasonable expenses incurred for:
a. medically necessarymedical, surgical, X-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, eyeglasses, hearing aids and prosthetic devices; and
b. necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs.
Florida Statute §627.736 states, in relevant part, the following:
(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), 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. . .
Defendant’s policy goes further and specifically provides that it will not pay any services that the No Fault act does not require it to pay:6
“We will not pay any charge that the No-Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.”
After careful consideration of the applicable Florida Statutes, relevant case law, and legislative history of the applicable Florida Statutes, the Court finds, for the reasons set forth below, that State Farm cannot now challenge relatedness and medically necessity under the facts and circumstances of this case and that the services performed by the Plaintiff are related and medically necessary.
Under the facts and circumstances of this case, the issue of medical necessity and relatedness are not properly before the court since at the time of this hearing State Farm failed to assert that the services were not medically necessary or related
Florida Rule of Civil Procedure 1.110(d) provides that “a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense.” Florida Rule of Civil Procedure 1.140(b) provides that “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]” In Florida, it is well settled that if an affirmative defense is not pleaded it is considered waived. See e.g., Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a]; Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971) (“Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits.”).
In a typical lawsuit for unpaid personal injury protection benefits it is Plaintiff’s burden to prove reasonableness, medical necessity, and relatedness. However, Plaintiff is not required to prove the medical necessity and relatedness of services that Defendant has conceded and already paid.7 As explained in more detail below, to challenge the medical necessity or relatedness of a previously paid service under the facts and circumstances of this case, the burden is on the Defendant to assert a defense8 seeking a reversal of the prior payment and allege a legally cognizable basis for its change of position.9 In this case, Defendant did not raise such a challenge as an affirmative defense and further was unable to show even a mere scintilla of evidence that would justify a challenge to the medical necessity and relatedness of the claimed services.
State Farm’s Reliance on Fla. Stat. § 627.736(4)(b) is Misplaced
Fla. Stat. § 627.736(4)(b) provides, in pertinent part, as follows:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, . . . This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, . . . Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.
Defendant relies on Fla. Stat. § 627.736(4)(b) for the proposition that it can challenge medical necessity and relatedness at any time. The Court believes that Defendant misinterprets this statute by over reading the plain statutory language and further by suggesting an interpretation that leads to an absurd result.
It is well settled that an interpretation of a statute cannot be given effect if it leads to an unreasonable or ridiculous result.10 Here, by construing Fla. Stat. § 627.736(4)(b) in such a manner that would allow an insurer — in perpetuity — to simply decide to change its mind and without asserting mistake, fraud, misrepresentation, etc. demand the return of its prior payment is equally absurd and the Court will not interpret the statute to lead to such an absurd result.
The stated purpose of the PIP statute is to provide for swift and virtually automatic payment of an insured’s medical bills so Florida insurance consumers can go on with their lives without the financial burden of unpaid medical bills hanging over their heads. To construe Fla. Stat. § 627.736(4)(b) in a manner that extends its application into perpetuity defies logic, common sense, and the entire purpose of the overall legislation codified in the Florida Motor Vehicle No-Fault Act.
The Court also finds support for Plaintiff’s argument based on the plain language of subsection (4)(b), which requires the Defendant to “assert”11 that services previously paid were not medically necessary or related. In this case, there is no record evidence demonstrating that Defendant made such an assertion.
Accordingly, Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to relatedness and medical necessity.
The Court finds that there are no triable issues remaining in this matter.
ORDERED AND ADJUDGED that Plaintiff, HEALTH DIAGNOSTICS OF ORLANDO, LLC, D/B/A STAND-UP MRI OF ORLANDO, a/a/o Yolene Cassamajor does have and recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $273.98, plus prejudgment interest of $75.13 for a total sum of $349.11, which shall bear interest at the legal rate of 4.75%, for all of which let execution issue.
It is further,
ADJUDGED, that Plaintiff is entitled to reasonable attorneys’ fees and costs and this Court retains jurisdiction to determine the amount of same.
__________________
1The Court recognizes that an order was entered on Defendant’s stipulation for substitution of counsel on November 05, 2015, but will not allow this to delay the hearing in light of this Court’s online procedures, which clearly state “The Court will not grant a substitution of counsel unless client’s written consent is obtained, and new counsel certifies, ‘I have reviewed the Court docket in this file and have spoken with all counsel of record. I am aware of all pending hearings, depositions and other deadlines that are set in this case.’ ”
2Plaintiff’s request for admissions #7 asked Defendant “Admit that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were medically necessary. Plaintiff’s request for admissions #8 asked Defendant “Admit that the amount charged by the Plaintiff for the bill(s), which are the subject matter of this lawsuit, were reasonable.” Plaintiff’s request for admissions #9 asked Defendant “Admit that the Assignor was involved in an automobile accident on the date described in the Complaint and that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were related to the automobile accident described in Plaintiff’s complaint.”
3The deadline to file any remaining motions expired on September 30, 2015.
4Paragraph 8 of the affidavit states as follows: “The HFCA forms submitted by Plaintiff and referenced herein as Exhibit “A,” are a record/data compilation kept in the ordinary course of regularly conducted business activity and it was the regular practice of STATE FARM to make such record or data compilation. This record/data compilation is made at or near the time of the event and they are trustworthy, given that the attached HCFAs are the very HCFAs submitted by Plaintiff in reference to the alleged treatment rendered to Yolene Cassamajor and they have not been materially altered in any way.”
5Amendatory Endorsement 6910.3 section 5(b) page 3 and 4.
6Amendatory Endorsement 6910.3 section 5(b) page 4.
7Derius v. Allstate Indemnity, 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a], often cited for the proposition that proving medical necessity and reasonableness is always plaintiff’s burden, is inapplicable here. The litigation there involved the reasonableness of a charge Allstate had already paid and the medical necessity and reasonableness of several charges Allstate had not paid.
8See Fla.R.Civ.P. 1.140(b): “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, . . .” (Emphasis added).
9E.g., Fraud, misrepresentation, mistake, etc.
10See City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993) (a statute’s plain and ordinary meaning must be given effect unless it leads to an unreasonable or ridiculous result). In Spence-Jones v. Dunn, 38 Fla. L. Weekly D1575b n. 2 (Fla. 3d DCA July 24, 2013), the court held that a statutory provision will not be construed in such a way so as to render meaningless or absurd any other statutory provision. See also Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000) [25 Fla. L. Weekly S1126a].
11Assertion is defined in Black’s Law Dictionary as “a declaration or allegation.”
