23 Fla. L. Weekly Supp. 759b
Online Reference: FLWSUPP 2307ALEXInsurance — Personal injury protection — Coverage — Medical expenses — Insurer that breached contract by utilizing statutory fee schedule which was not incorporated in policy when processing medical provider’s bill is not entitled to challenge reasonableness of charges
PAN AM DIAGNOSTIC SERVICES, INC. D/B/A Pan Am Diagnostic of Orlando (a/a/o Jean Alexandre), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC 9112-O. November 18, 2015. Honorable Steve Jewett, Judge. Counsel: Yigal D. Kahana, for Plaintiff. Tim Kazee, for Defendant.
REVERSED. FLWSUPP 2507ALEX (State Farm Mutual Automobile Ins. Co. v. Pan Am Diagnostic Services, Inc., a/a/o Jean Alexandre, 9th Jud. Cir., Case No. 2015-CV-000125-A-O, 3/24/17)
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENTAND DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
This matter came before the Court on October 30, 2015, after due notice to the parties, on the Plaintiff’s motion for Final Summary Judgment, and on the Defendant’s motion for Final Summary Judgment. Having read the motions, considered the argument of counsel present, reviewed all the applicable documents in the Court file, and those presented at the hearing by the attorneys, and having reviewed the evidence and case law provided by the attorneys and being otherwise advised in the premises, the Court denies the Defendant’s motion and GRANTS the Plaintiffs Motion for Summary Judgment, finding as follows:
The Defendant has admitted the medical necessity and relatedness of the MRI studies at issue in this case. The parties also agreed that Defendant made a benefits payment of $853.02 to Plaintiff for the services at issue. The parties further agreed that the only remaining issue for this court to decide is whether the Plaintiff’s charge of $2150.00 for an MRI exam (CPT Code 72141) provided to the assignor on the date of service, September 19, 2012, in Orange County, Florida, was “reasonable.”Analysis and findings of fact
The Plaintiff filed the affidavit of Mrs. Roberta Kahana, a fact witness, to show that the Plaintiff’s charge was reasonable for the services at issue, where and when they were rendered. The Defendant filed the affidavit of Dr. Michael Foley, as an expert witness, to show that Plaintiff’s charge was not reasonable for the services at issue, where and when they were rendered.Findings of law
The affidavit of Roberta Kahana, with its accompanying attachments, shows a substantial connection with Orange County and is admissible evidence that the Plaintiff’s charge was reasonable, for the services at issue where and when they were rendered. The Plaintiff has carried its burden of proof in this case.
Consistent with its prior rulings, this Court holds that the reasonableness of the Plaintiff’s charge is not an issue to be considered because the Defendant breached the policy at issue as a matter of law. See Kingsway Amigo Ins. Co. v. Ocean Health Inc., 36 Fla. L. Weekly D1062a (Fla. 4th DCA 2011); FS §627.736(5)(a)(5)(2012); Northwoods Sports Medicine, v. State Farm/Wellness Associates v. USAA, 39 Fla. L. Weekly D491a (Fla. 4 DCA 2014). The Court notes, and follows, the 9th Circuit appellate decision in Progressive American Ins. Co, v. Emergency Physicians of Central Florida, LLP, Case No. 2014-CV-00079-A-O (Appellate 9th, 2015). That Court held that there is no dispute as to reasonableness where the insurer already made payment according to the Medicare fee schedule, as the insurer concedes reasonableness by paying pursuant to the fee schedule and may not thereafter contest reasonableness.
In light of the foregoing, the Court need not consider the sufficiency of the affidavit of Dr. Foley as countervailing summary judgment evidence to that presented by the Plaintiff.
Therefore it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, PAN AM DIAGNOSTIC SERVICES INC., d//b/a Pan Am Diagnostic of Orlando, as assignee of Jean Alexandre, against the Defendant, State Farm Mutual Automobile Insurance Company, whose address is One State Farm Plaza, Bloomington, IL 61710, in the total amount of $866.98 ($2,150 @ 80% = $1720.00, less prior payment of $853.02 = $866.98), plus applicable prejudgment and post judgment interest, for which let execution issue forthwith.
The Court hereby expressly reserves jurisdiction of those issues related to prevailing party attorney’s fees and costs in favor of Plaintiff.ORDERED AND ADJUDGED:
That Plaintiffs Motion for Final Summary Judgment is GRANTED.
