24 Fla. L. Weekly Supp. 705a
Online Reference: FLWSUPP 2409ALLIInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable expenses — Summary judgment — Notice of summary judgment evidence on which opposing party intends to rely — Insurer did not satisfy rule 1.510(c) requirement to provide notice of evidence on which it intends to rely in opposition to motion for summary judgment by filing, before medical provider’s motion for summary judgment was filed, affidavit accompanied by notice stating insurer’s intent to rely on affidavit in support of or in opposition to any motion for summary judgment — Motion for summary judgment is granted
CHARMAINE ALLISON, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 10-04191 CC (05). September 29, 2016. Ivonne Cuesta, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT DATED 1/30/2015
This cause, having come before the Court on Plaintiff’s Motion for Summary Judgment dated 1/30/2015, the Court having heard argument of the parties, reviewed all materials filed by both parties and being otherwise advised in the premises it is hereby ORDERED AND ADJUDGED, as follows:
1. Charmaine Allison was involved in an automobile accident, on or about September 5, 2008, and at that time she was covered by a policy of insurance issued by the Defendant. This insurance policy provided Personal Injury Protection benefits to Charmaine Allison. From September 16, 2008 through January 16, 2009 Trauma & Rehab Associates provided medical care to the Plaintiff. The bills for said services were submitted to and received by the Defendant in the amount of $11,405.00. There is a $1,000.00 deductible that applied to the above noted bills. The Defendant, in response to the Demand Letter, issued a payment of benefits for $3,179.49, interest of $252.18 and penalty and postage of $256.49 (these checks have not been cashed). The Plaintiff, subsequently, filed suit seeking payment in the amount of $5,144.51 which represents 80% of the amount billed less the amounts paid by the Defendant after the deductible is taken into consideration.
2. Plaintiff’s motion seeks to have the Court hold that the amounts billed by Trauma & Rehab Associates for the services that were performed are reasonable, related and necessary. Relatedness and necessity are moot based on the Defendant’s August 25, 2016 stipulation to same. The Plaintiff, in support of the remaining issue, filed two affidavits by Dr. Craig August. Dr. August is the owner of Trauma & Rehab Associates and set the at issue charges. The affidavits of Dr. Craig August, in part, present the at issue medical bills and affirm that Charmaine Allison received the treatment.
3. Because a Plaintiff’s prima facie case regarding the reasonableness of medical 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 the Court hereby finds that the Plaintiff has established a prima facie case that the instant bills were reasonable. See A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (11th Cir. Ct. 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. A plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. East West Karate Assn. Inc. v. Riquelme, 638 So. 2d 605 (Fla. 4th DCA 1994).
4. Notwithstanding the foregoing Dr. Craig August, by way of his affidavits, also set forth that during the time period that the instant services were provided to Charmaine Allison (1) that the amount charged was Trauma & Rehab Associates’ usual and customary charge, (2) when payment was based on a reasonable amount the usual and customary amount Trauma & Rehab Associates would accept as payment would be the amount billed, (3) the methodology behind how Trauma & Rehab Associates’ charges were set, (4) that Trauma & Rehab Associates’ charges were within the range of what others in the community were charging, (5) that in the time period leading up to the instant services all major PIP insurance carriers were paying Trauma & Rehab Associates bills based on the full amount billed, (6) that during the time period leading up to the instant services none of the major PIP insurance carriers contested the reasonableness of Trauma & Rehab Associates’ charges and (7) that Trauma & Rehab Associates’ charges had not changed for several years before the instant treatment was rendered and billed for. This additional information clearly meet and satisfy one or more of the factors identified under 627.736(5)(a) for what may be considered in determining reasonableness. Section 627.736(5)(a) does not mandate consideration of every factor when determining a reasonable amount. The Plaintiff has clearly met their burden and established a prima facie case as to the reasonableness of the at issue charges under the provisions of Florida Statute 627.736(5)(a).
5. Given that the Plaintiff established a prima facie case as to reasonableness of the at issue charges the Court asked the Defendant if they had any opposition. The Defendant advised the Court that they were relying on one and only one item in opposition — a November 2, 2012 filing entitled “Notice of Filing Affidavit of Ismail Sarabi.” The Plaintiff, in response, argued that the Court could not consider this affidavit because the Defendant had failed to comply with their mandatory obligation under Florida Rule of Civil Procedure 1.510(c) to notify the Plaintiff that the Defendant intended to rely upon the November 2, 2012 affidavit of Ismail Sarabi to oppose the motion for summary judgment that the Plaintiff filed on January 30, 2015.
6. Florida Rule of Civil Procedure 1.510(c) states:
The adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies.
and the supreme court in the 2005 rule amendment stated:
Subdivision (c), . . . Additionally, the amendment provides that the adverse party must also notify the opposing party of any summary judgment evidence on which it relies.
The Court, during the hearing, reviewed the docket and did not find that the Defendant had ever notified the Plaintiff that they intended to rely upon the November 2, 2012 affidavit of Ismail Sarabi to oppose Plaintiff’s January 30, 2015 motion for summary judgment. Counsel for the Defendant, confirmed that she was unaware of any specific notice.
7. Counsel for the Defendant, nonetheless, contended that the November 2, 2012 “Notice of Filing Affidavit of Ismail Sarabi” should he considered by the Court because the body of the notice included language that said “Pursuant to Fla. R.Civ.P 1.510, Defendant hereby puts Plaintiff on notice that it intends to rely on this document in support of or in opposition to any motion for summary judgment filed.” The instant case is analogous to State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970, 972-73 (Fla. Dist, Ct. App. 2016) [41 Fla. L. Weekly D805b]. The defendant in Figler, just as herein, attempted to rely upon an affidavit, in opposition to a motion for summary judgment, that had been filed before the motion for summary judgment and where the defendant did not otherwise put the plaintiff on notice that they intended to rely on said affidavit in opposition to the later filed motion for summary judgment. The Figler court held that the defendant did not comply with Rule 1.510 and did not put the plaintiff on notice regarding their intent as required. The Figler opinion included language which is directly applicable to the instant case:
Even if State Farm had stated in its notice, when it filed the subject affidavit, that the affidavit will be used “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code, including to oppose any motion for summary judgment filed by the plaintiff,” the notice requirements of rule 1.510(c) would not have been met. . . . Allowing a party, who intends to oppose any future motion for summary judgment, to file, prior to the filing of any motion, a generic notice that the documents filed during discovery will be used “for any purpose,” and then allowing that party to argue that the summary judgment movant should have known that a particular document, filed in advance of the motion, would be used to oppose the motion, would be unfair and would invite game-playing. Generic “for any purpose” notices of evidence to oppose summary judgment are “shot gun” defensive tactics that do not assist the court in carrying out “the higher purpose of the administration *975 of justice.” Demos v. Walker, 99 Fla. 302, 126 So. 305, 306 (1930).
This Court finds that the Defendant, in this case, has not complied with their obligation under Rule 1.510 and did not put the Plaintiff on notice that they intended to use the November 2, 2012 affidavit of Ismail Sarabi in opposition to Plaintiff’s January 30, 2015 motion for summary judgment. Summary judgment proceedings should not involve litigation by ambush. In addition, and even if a party could pre-file evidence to oppose future summary judgment motions, as the Defendant did here, and still be in compliance with Rule 1.510 by using the type of language that the Defendant used here this Court still finds that the Defendant, in this case, has not complied with Rule 1.510 as it relates to the November 2, 2012 affidavit of Ismail Sarabi. The language that the Defendant points to was not in the title of the filing nor was it reflected in the Comments section of this Court’s docket. The language that the Defendant used was buried in the body of the notice of filing. A party is not expected, nor are they required, to read every single word on every single page that has been filed in order to hopefully discern what a party might use for or against a particular summary judgment motion — especially in a case like the instant one that has been pending for six years, involved several other motions for summary judgment on different issues, a large number of filings and where the affidavit was filed more than two years before plaintiff’s motion was filed.
8. Accordingly, Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED. Trauma & Rehab’s charges are hereby found to be reasonable in amount.
