23 Fla. L. Weekly Supp. 88a
Online Reference: FLWSUPP 2302ALONInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not err in finding that opposing affidavits filed by insurer did not preclude summary judgment in favor of medical provider on issue of reasonableness of provider’s charge where one affiant was not qualified to render opinion on reasonableness of charges and other affiant concluded that he needed more information in order to conclude that treatment was reasonable, related and medically necessary
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA WELLNESS AND REHABILITATION CENTER, INC., A/A/O LUIS ALONSO, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE13-022796 (AP). L.T. Case No. COCE11-018402. June 3, 2015. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Robert W. Lee, Judge. Counsel: Diane H. Tutt, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant. Todd A. Landau and Matthew C. Barber, Landau & Associates, P.A., Hallandale Beach, for Appellee.
OPINION
(PER CURIAM.)
(RODRIGUEZ, Judge.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from an adverse final summary judgment entered by the learned county court judge Robert W. Lee. This Court, sitting in its appellate capacity, fully recognizes the superior vantage point of the county court judge in applying the reasonableness test to his determination. If reasonable men could differ as to the propriety of the county court’s ruling then the action is not unreasonable and should not be disturbed by the appellate court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).
The county court did not err in granting Florida Wellness and Rehabilitation Center, Inc.’s (“Florida Wellness”) motion for summary judgment. Florida Wellness presented its claim to State Farm on a standard CMS-1500 form, which was signed by Dr. M. Schulman, D.C. Florida Wellness also submitted the affidavit of Dr. Roy Canizares (“Dr. Canizares”), who reviewed the medical records and opined that the medical treatment was reasonable, related and necessary. The CMS-1500 form and Dr. Canizares’s affidavit are sufficient for Florida Wellness to meet its burden of proof that the care given to the patient was reasonable, related and medically necessary.
The county court correctly rejected Darrell Spell’s (“Mr. Spell”) affidavit, which State Farm submitted in opposition to summary judgment. Mr. Spell, who is an actuary, reviewed the reimbursement rates published by the Centers for Medicare and Medicaid Services (CMS) in the Physician Fee Schedule (PFS) and rendered an opinion that the medical bills were not reasonable. The county court reasoned that (1) Mr. Spell was not competent to render a medical opinion on the ultimate question of what was a reasonable bill for medical treatment, and (2) Mr. Spell did not have any personal knowledge of the injury, treatment or billing. In baseball terms, Mr. Spell failed to step on first base and then got thrown out at third anyway.1 As the county court pointed out in its order by citing numerous cases in which Mr. Spell was found incompetent to testify, unlike a baseball player who can score the next time up, absent a change in the rules (law), Mr. Spell is not the right witness to render an opinion on the ultimate question of reasonableness of the medical bills.
The county court’s ruling on the medical affidavit of Dr. Michael Mathesie (“Dr. Mathesie”) was also proper. State Farm opposed summary judgment by also submitting Dr. Mathesie’s affidavit. The county court found Dr. Mathesie’s affidavit to be insufficient because Dr. Mathesie rendered no opinion as to the reasonableness of the charges for the medical services. The county court found that Dr. Mathesie’s affidavit merely reached the conclusion that he needed more information in order to conclude that treatment was reasonable, related and medically necessary. Section 90.702(1), Florida Statutes, supports the county court’s decision. To render the opinion that he, Dr. Mathesie, did not have information he needed to conclude whether the treatment was reasonable, related and medically necessary is to admit that any opinion about the treatment is a personal opinion but based on insufficient facts or data.2 As a result, the county court found that Dr. Mathesie’s affidavit did not create a disputed issue of material fact concerning treatment. Accordingly, it is
ORDERED AND ADJUDGED that the final judgment is hereby AFFIRMED. Appellant’s Motion for Attorney’s Fees is DENIED. Appellee’s Motion for Attorney’s Fees is GRANTED and this cause is REMANDED for a determination of the amount of attorney’s fees to be awarded. (GARCIA-WOOD and PERLMAN, JJ. concur.)
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1See Enterprise Leasing Co. v. Demartino, 15 So.3d 711, 714-15 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1400f] (Affidavits filed with summary judgment need to, first, be based on personal knowledge, second, set forth admissible facts, and third, affirmatively show that the affiant is competent to testify to the matters contained in the affidavit).
2See § 90.702(1), Fla. Stat. (2013) (The testimony is based upon sufficient facts or data).
