23 Fla. L. Weekly Supp. 646a
Online Reference: FLWSUPP 2306MENEInsurance — Personal injury protection — Summary judgment — Reasonableness of charges — Medical provider met burden of establishing reasonableness of charges in two bills — Opposing affidavit of insurer’s expert is conclusory and self-serving and is not based on sufficient facts or reliable principles and methods — Accord and satisfaction — Facts do not establish that insurer’s partial payment of one bill effected accord and satisfaction where amount of claim was liquidated and not in dispute, insurer did not tender check in good faith, check did not contain conspicuous statement that established payment as full satisfaction, and provider filed affidavit establishing that check was accepted as partial payment — There can be no accord and satisfaction as to second bill where insurer issued no payment on that bill — Provider’s motion for final summary judgment is granted
NORTH BROWARD HEALTH & REHAB, INC., (a/a/o Philomene Menelas), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-03105 CONO (70). September 15, 2015. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, House Counsel of United Automobile Insurance Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 1, 2015 on Plaintiff’s Motion for Final Summary Judgment and the Court having reviewed the motions, the exhibits, the Court file, relevant legal authorities; the Court having heard oral arguments; and the Court otherwise being advised in the premise, the Court hereby makes the following findings:
This case concerns two groups of bills representing services performed by North Broward Health & Rehab, Inc. (“North Broward”) on Philomene Menelas (“claimant”). See Joint Pre-Trial Stipulation filed on July 27, 2015. The first group of bills concerned dates of service September 12, 2011 through September 22, 2011 (“Bill 1”) and the second bill concerned dates of service September 27, 2011 through September 29, 2011 (“Bill 2”). The services were performed and were medically necessary and related to the claimant’s September 3, 2011 motor vehicle accident. Id. The claimant was covered by a policy of insurance issued by United Automobile Insurance Company (“United”) with a policy period covering February 19, 2011 through February 19, 2012 which contained a $1,000 deductible. Plaintiff timely billed Defendant and charged a total of $2925 for both bills at issue. Id. Defendant issued payment in the amount of $176.56 for the dates of treatment at issue. Id. Regarding Bill 1, Defendant applied $641.36 to the deductible and reimbursed $176.56. Regarding Bill 2, Defendant applied $358.64 to the deductible and did not tender payment. See Affidavit of Antoinette Surin and materials attached thereto. The amounts billed were reduced by Defendant prior to being applied to the deductible. As the amounts ultimately tendered by Defendant represented less than 80% of the billed amount less the deductible, the instant lawsuit was filed wherein Plaintiff sought the remaining $1,540.
By stipulation of the parties, the only remaining issues were: (1) whether the charges for services rendered to the claimant were reasonable; (2) whether there has been accord and satisfaction in accordance with §673.3111, Fla. Stat. For the reasons discussed infra, the Court finds Defendant’s payment was in breach of its duties and obligations of the insurance policy and that Plaintiff’s charges were reasonable. Additionally, the Court finds that there was no accord and satisfaction regarding the bills at issue. Accordingly, the Court grants Final Summary Judgment for the Plaintiff.I. Reasonableness of Plaintiff’s Charge and Inadmissibilityof Dr. Bradley Simon’s Testimony
In support of the reasonableness of its charge, Plaintiff filed the affidavit of Antoinette Surin. She testified that the bills represented the facility’s “reasonable, usual and customary charges” and that she has. She surveyed other facilities to confirm her prices were reasonable and also personally reviewed payments from other payors. Accordingly, this Court finds that Plaintiff has more than satisfied the burden of establishing its prima facie case as Plaintiff could have met its burden simply by presenting the medical bill in question. See 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).
In opposition to the reasonableness of Plaintiff’s charges, Defendant filed the affidavit of Dr. Bradley Simon, D.C. Defendant sought to introduce this affidavit as expert testimony. In a Summary Judgment hearing, the Court can only consider admissible evidence. See Fla. R. Civ. P. 1.510(e). In order for expert testimony to be deemed admissible, the affidavit must comply with the amendments to the Evidence Code wherein the legislature adopted the Federal Daubert standard. See §90.702, Fla. Stat. (2015); Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). “The legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.” Perez v. Bell South Telecomms., Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]. Expert testimony must be derived from the scientific method and include empirical testing. Id. The Evidence Code provides that an expert may only testify if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
While this Court does not impugn Dr. Simon’s expertise as a Chiropractor, the Court finds that he is not qualified to opine as an expert on pricing. Dr. Simon’s affidavit fails to possess even a modicum of credibility, is conclusory, and is wholly self-serving. His unsupported conclusion that nothing over 200% of Medicare could ever be reasonable for Chiropractic services stands in direct opposition to the fact that his prices have been found to be higher than his chosen maximum rate. See Margate Pain and Rehabilitation, Inc. (a/a/o Michael Olivera) v. State Farm Mut. Auto. Ins. Co., 13-12292 COCE (53), (Fla. Broward Cty. Ct. 2015).
Most importantly, the Court finds that Dr. Simon’s affidavit does not meet any of the three prong test for admissibility. And accordingly, the Court refuses to admit any of his testimony.
Regarding the first prong, his testimony is not based on sufficient facts or data. He only alleges a vague familiarity with pricing that, aside from the operation of his own clinic, is wholly based on hearsay and speculation rather than any discernable scientifically-collected data. His inclusion of Medicare renders his data invalid as Medicare is not one of the enumerated factors of (5)(a)1 and is certainly not insurance. Atkins v. Allstate Ins. Co., 382 So.2d 1276 (Fla. 3d DCA 1980). He doesn’t even provide a year of the Medicare fee schedule to which he is referring. Additionally, the data would be improper as it would include (a) insurers who elected the “schedule of maximum charges” and thus were travelling under completely different statutory and contractual schemes and (b) insurers who decided to pay the fee schedule rates in direct violation to the requirements of the No-Fault law. Moreover, he only states that “nearly all” PIP insurers pay 200% of Medicare — which indicates that some carriers pay at a greater rate. There is no indication why he excludes this information from his dataset other than the fact that it does not conform to the result he is attempting to reach. His review of his own contracted rates with HMO and PPO carriers is irrelevant. There is no connection whatsoever to the scientific method — limiting a dataset to oneself and personally known colleagues is improper and invariably leads to confirmation bias. There is no indication that this study involves any randomization, provides for an adequate sample size, or calculates statistical error. He has demonstrated no knowledge of Plaintiff’s clinic whatsoever.
Regarding the second prong, there is no discernable methodology underlying his testimony. He appears to have selected his reasonableness cap of 200% of Medicare out of thin air. There is no indication of any statistical error rate. Similarly, any attempt to base reasonableness on contracted private pay insurance contracts is wholly inappropriate in the PIP context. The fact that he intentionally disregarded insurers that pay at a rate greater than 200% of Medicare without any justification shows Dr. Simon is willing to pull out all the stops to reach a pre-determined conclusion. This runs counter to the scientific method and the Court is left with the distinct belief that he is doing whatever he can to reach the end result of validating the Defendant’s litigation posture.
This Court previously rejected Dr. Simon’s testimony. See Coral Gables Chiropractic, PLC (a/a/o Maribel Perez) v. United Auto Ins. Co., 11-10449 CONO (70) (Fla. Broward Cty. Ct. 2015) [23 Fla. L. Weekly Supp. 370a]. Dr. Simon’s attempt to offer expert testimony has been similarly rejected by numerous sister Courts. Open Magnetic Scanning, LTD d/b/a Windsor Imaging (a/a/o Jose Coto) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 824a (Fla. Broward Cty. Ct. 2013); North Miami Therapy Center, Inc. (a/a/o Nikita Charles) v. State Farm Mut. Auto. Ins. Co., 13-09935 COCE (53) (Fla. Broward Cty. Ct. 2015) [23 Fla. L. Weekly Supp. 371a]; and Margate Pain and Rehabilitation, Inc. (a/a/o Michael Olivera) v. State Farm Mut. Auto. Ins. Co., 13-12292 COCE (53) (Fla. Broward Cty. Ct. 2015). The Fourth District Court of Appeal has also recently upheld the striking of a similar attempt by an insurer to create an issue of fact through similar testimony that also did not meet the requirements of §90.702.
Accordingly, this Court finds Dr. Simon’s testimony inadmissible under §90.702, Fla. Stat. (2015). As Plaintiff met its burden of presenting a prima facie case, as the record is devoid of any competent testimony or evidence to create an issue of fact necessitating a trial, Summary Judgement for the Plaintiff is appropriate.II. Accord and Satisfaction
Defendant contends that an Accord and Satisfaction pursuant to Fla. Stat. §673.3111 should prevent Plaintiff’s request for additional payment. However, the facts presented in this case are insufficient to establish that an accord and satisfaction occurred regarding the bills at issue.
To ultimately prevail on an accord and satisfaction defense, United would have to prove that the instrument: United tendered a check in good faith; the amount of the claim was subject to a bona fide dispute; that North Broward obtained payment; and that the check or accompanying written communication contained a conspicuous statement that the amount was being tendered as full satisfaction of the claim. Looking at the evidence, in the light most favorable to United, it is clear that its partial payment of Bill 1 does not constitute an accord and satisfaction as to Bill 1 and no accord and satisfaction exists regarding Bill 2.
First, the amount of the claim was liquidated and not subject to a bona fide dispute. Defendant was contractually obligated to pay 80% of Plaintiff’s reasonable charge after satisfaction of the deductible. There was no bona fide dispute over this issue. The billed amount less the deductible was $2,925. Defendant should have applied the full amount of Plaintiff’s reasonable charge to the deductible. This would have resulted in $1,925 which, taken at 80%, would have amounted to $1,540. Instead of paying this liquidated amount or applying the full amount of Plaintiff’s reasonable charge to the deductible, Defendant tendered an amount which represented a reduction of bills in accordance with the fee schedules established by §627.736(5)(a)2f, Fla. Stat. (2011) without ever finding or asserting that Plaintiff’s charges were unreasonable.
Second, United did not tender the check in good faith. This check was the product of an intentional economic breach of clear contractual language.
Third, and crucial to this Court’s determination as to Bill 1, neither the check nor accompanying written communication contained a conspicuous statement that established the payment as full satisfaction. Under the Uniform Commercial Code, it is for the Court to decide whether any writing is conspicuous. See Fla. Stat. §671.201. See also United Auto. Ins. Co. v. Jeffrey L. Stranger, P.A., Inc. (a/a/o Ryan Vincent), 19 Fla. L. Weekly Supp. 927a (Fla. 17th Cir. Ct. App. Div. 2012). This is not a case where the Court was required to analyze font size, color, and contrast. Here, neither the check nor the Explanation of Review (“EOR”) contained any language whatsoever stating the check was made in full satisfaction. The prototypical “full and final” language does not appear anywhere on the check or EOR.
As to Bill 2, no payment was issued. Without any reimbursement whatsoever, an accord and satisfaction cannot take place as a matter of law.
Moreover, the Plaintiff filed the Affidavit of Antoinette Surin who explained, inter alia, that the amounts were accepted as partial payments and not as full satisfaction of the claim. Defendant filed no affidavits or evidence on this issue that would create an issue of fact.
Accordingly, this Court finds that Defendant’s pre-suit payment of Bill 1 did not constitute an accord and satisfaction. Rather, this was simply a partial payment issued by Defendant the legal significance of which is only the reduction of the amount presently due and owing to Plaintiff.
Therefore, it is hereby ORDERED AND ADJUDGED, Plaintiff’s motion for Final Summary Judgment is granted.
