23 Fla. L. Weekly Supp. 585a
Online Reference: FLWSUPP 2306OLKOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Where insurer never alleged that it elected to limit reimbursement in accordance with statutory fee schedule but, instead, has challenged reasonableness of medical provider’s charge, factual dispute as to reasonableness of charge precludes summary judgment — Provider cannot rely on same medical bill that was rejected by insurer as unreasonable as prima facie evidence in support of its motion for summary judgment on reasonableness of charge
NEW SMYRNA IMAGING, LLC, as assignee of Jeff Olkowski, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 20147 CONS, Division 71. September 17, 2015. Christopher Kelly, Judge. Counsel: Steven Dell, Orlando, for Plaintiff. Matthew Corker, Orlando, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Plaintiff’s Motion for Final Summary Judgment and this Court having heard arguments of counsel and being otherwise fully advised in the premises, hereby finds as follows:Facts
Jeff Olkowski (“Mr. Olkowski”) was insured by State Farm Mutual Automobile Insurance Company (“Defendant”) for up to $10,000 in Personal Injury Protection benefits. The insurance policy was in full force and effect on April 26, 2012 when Mr. Olkowski sustained injuries as a result of an automobile accident.
Mr. Olkowski received diagnostic imaging services from New Smyrna Imaging, LLC (“Plaintiff”) on June 6, 2012.1 The Plaintiff submitted its medical bill to the Defendant seeking reimbursement in the amount of $1,695.00 for CPT code 72141. The Defendant, upon receipt of said bill on June 15, 2012, extended PIP coverage for the services, but reduced the payment for the services rendered calculated at 200% of the 2007 Medicare Part B Fee Schedule (“Fee Schedule”) in the amount of $804.82.ArgumentPlaintiff’s Argument
The Plaintiff contends that the Defendant breached the insurance policy by reimbursing the Plaintiff pursuant to the Fee Schedule. More specifically, the Plaintiff alleges that the Defendant reimbursed the Plaintiff in accordance with §627.736(5)(a)(2), Florida Statutes, which is the schedule of maximum charges, when Defendant’s insurance policy did not provide notice to the insured of the Defendant’s election to limit reimbursement pursuant to the Fee Schedule. The Plaintiff contends that reimbursement is due pursuant to §627.736(5)(a)(1), Florida Statutes and Plaintiff is entitled to 80% of the charge submitted to the Defendant.Defendant’s Argument
The Defendant contends that although reimbursement was made in reference to a fee schedule, that determination was made under §627.736(5)(a)(l) and not on §627.736(5)(a)(2). The Defendant argued that in accordance with §627.736(5)(a)(l), it promised to pay its insured only a reasonable amount after taking into account evidence of usual and customary charges, payments accepted by the provider, reimbursement levels in the community, various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement. The Defendant further argued that under this analysis it found the amount billed to be unreasonable and it paid what it considered a reasonable amount.
The Defendant also argued that the Plaintiff always has the burden of proof regarding reasonableness of the charge. In this regard, the Defendant challenged the sufficiency of the record evidence to support a finding of summary judgment in favor of the Plaintiff.Summary Judgment Standard
Summary judgment is appropriate if the “pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden is not shifted to the opposing party until the movant has successfully met its burden. In reviewing the evidence, all reasonable inferences are to be drawn in favor of the nonmoving party Holl v. Talcott, 191 So.2d 40 (Fla. 1966); See also Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2401a]. The granting of a motion for summary judgment deprives a party of the right to a trial and must be exercised with restraint; any doubts must be resolved in favor of the non-moving party. Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182 (Fla. 2004) [28 Fla. L. Weekly S866a].Analysis
The Plaintiff’s argument is premised upon the Defendant having made reimbursement in reference to a fee schedule. However, unlike other “fee schedule” cases the Defendant is not alleging it elected to limit reimbursement pursuant §627.736(5)(a)(2). The Defendant expressly set forth in the Explanation of Review that “payment for this service is based upon a reasonable amount pursuant to both the terms of the policy of insurance . . . as well as F.S. 627.736(5)(a)1.”
In addition, the Defendant’s Answer denied that that services were provided at a reasonable charge and in its Affirmative Defenses, the Defendant alleged that “Plaintiff provider has violated F.S. Section 627.736(a)(1) because the medical provider charged an unreasonable amount for the services and supplies rendered.”
The fee schedule cases cited by Plaintiff in support of its Motion for Summary Judgment are distinguishable from this case. In the cases cited by Plaintiff, the parties appear to have been in agreement that the only issue before the court related to whether the insurance company had properly elected to limit reimbursement in accordance §627.736(5)(a)(2). In those cases, the issue to be resolved required an interpretation of the relevant insurance contract and statutory provisions. While in the instant case, Defendant has never alleged it elected to limit reimbursement in accordance with a fee schedule, but instead that the amount charged by Plaintiff was unreasonable, thus creating a factual question.
The analysis must then turn to whether the record evidence negates the existence of any material fact. The summary judgment evidence consisted solely of hearing in a juvenile delinquency proceeding, an evidentiary hearing.
The guidance provided by A.J. is that in an evidentiary hearing, the court is required to make findings of fact, and in furtherance of that, is certainly entitled to give a properly authenticated medical bill the appropriate weight based on the totality of the testimony and evidence presented.
Whereas the case sub judice involves a motion for summary judgment. The Plaintiff carries the burden to conclusively rule out the existence of any dispute between the parties as to a material fact. The reasonableness of the amount charged for the services provided by the Plaintiff is material and has been contested by the Defendant. Therefore, the Plaintiff cannot now rely upon the very same bill that was initially rejected as unreasonable as prime facie evidence that the charge was reasonable.Conclusion
It is therefore, that this Court finds that the Plaintiff has failed to sustain the burden of proof it must show in order to be entitled to judgment as a matter of law in this matter, it is hereby ORDERED that Plaintiff’s Motion for Summary Final Judgment is DENIED.
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1Mr. Olkowski assigned the Plaintiff his rights to collect benefits due under the insurance policy for the treatment received.
