24 Fla. L. Weekly Supp. 306a
Online Reference: FLWSUPP 2404REYEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Medical provider’s motion for summary judgment on issue of reasonableness of x-ray charges is denied where affidavit filed by provider expresses opinion premised solely on what other providers charge and does not take into consideration reimbursements accepted by provider, reimbursement levels in community, or federal and state medical fee schedules, and opposing affidavit filed by insurer presents opinion that is based on all of those factors — Fact that insurer previously issued payment on claim does not preclude it from disputing reasonableness of charges
GABLES INSURANCE RECOVERY, INC., a/a/o Jose Reyes Jr., Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 15-1748 SP 25 (01). June 17, 2016. Laura Anne Stuzin, Judge. Counsel: Dagmar Llaudy, for Plaintiff. Jon Sorensen, for Defendant.
ORDER DENYING THE PLAINTIFF’S MOTION
FOR FINAL SUMMARY JUDGMENTTHIS CAUSE having come before the Court on April 27, 2016, on the Plaintiff’s Motion for Final Summary Judgment and the Court, having heard argument of counsel and being otherwise fully advised in the premises, finds as follows;FINDINGS OF FACT
This case involves a claim for PIP benefits pursuant to Florida’s Motor Vehicle No Fault Law. The issues addressed in the motion and discussed at the hearing are whether the charges submitted by All X-Ray Diagnostic Services are reasonable, related and medically necessary. The Defendant has stipulated to relation and medical necessity. The only remaining issue left to be resolved by this Court is whether the charges are reasonable. All X-Ray submitted charges for x-rays of the cervical spine, lumber spine and left forearm. The x-rays were done on June 1, 2010.
In support of its motion and in order to make a prima facie showing that the charges are reasonable, the Plaintiff relied on the affidavit of Sabino Ferro, the owner of All X-Ray Diagnostic Services. In support of his opinion as to reasonableness, Mr. Ferro states that the charges submitted in this case “are charges that All X-Ray has had for years in its operation,” “are based on the prevailing amounts for these types of services by like providers,” “do not exceed what is customarily charged in the community by similarly credentialed providers,” and “are usual and customary.” See affidavit of Sabino Ferro, paragraph 11. Additionally, Mr. Ferro states that the charges have never been characterized prior to 2008 as “unreasonable” or “excessive”. See affidavit of Sabino Ferro, paragraph 12. Mr. Ferro did not take into consideration reimbursement levels in the community nor did he consider any federal or state medical fee schedules applicable to automobile or other insurance coverages.
In opposition to the Plaintiff’s motion, the Defendant relies on the affidavit of Monica Johnson. Ms. Johnson has “18 years of experience in the insurance industry starting in 1998 as a Medical Claims Representative for Progressive Insurance Company.” See affidavit of Monica Johnson, paragraph 7. According to her affidavit, Ms. Johnson relied on her knowledge of various federal and state fee schedules as well as reimbursement rates in the community. See affidavit of Monica Johnson, paragraph 7. Additionally, Ms. Johnson reviewed the deposition testimony of Mr. Sabino Ferro in which he discussed his usual and customary charges and reimbursements accepted. See affidavit of Monica Johnson, paragraph 7. In other words, in formulating her opinion, Ms. Johnson relied on evidence of 1) the usual and customary charges and payments accepted by provider at issue (who submitted the charges), 2) reimbursement levels in the community and 3) various state and federal fee schedules applicable to automobile and other insurance coverages. According to Ms. Johnson, the charges submitted by All X-Ray “are above what is reasonable in this community based upon the above employed criteria during the calendar year 2010, the year in which the services at issue were rendered.” See affidavit of Monica Johnson, paragraph 9.
STANDARD ON MOTION FOR SUMMARY JUDGMENT
“[S]ummary judgment procedure is necessarily in derogation of the constitutionally protected right to trial.” Holl v. Talcott, 191 So. 2d 40, 48 (Fla. 1966). Therefore, a party to a civil suit is entitled to summary judgment only “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “[T]he party moving for summary judgment must show conclusively that no material issues remain for trial.” Visingardi v. Tirone, 193 So. 2d 601, 604 (Fla. 1966) (emphasis in original). “In other words, the burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at the trial.” Id. “The burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail.” Mejiah v. Rodriguez, 342 So. 2d 1066, 1067 (Fla. 3d DCA 1977). “Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). “[W]hen considering such a motion, the court should take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party.” Swift Indep. Packing Co. v. Basic Food Intern., Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984). The court must “view all of the facts and inferences in the light most favorable to the nonmoving party.” Stroud by Schuette v. Strawn, 675 So. 2d 646, 647 (Fla. 2d DCA 1996)[21 Fla. L. Weekly D1394a]; Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “If the existence of such issues or the possibility of their existence is reflected in the record, or the record even raises the slightest doubt in this respect, the summary judgment must be” denied. Mejiah, 342 So. 2d at 1067-68; Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979).
STANDARD TO DETERMINE REASONABLENESS OF CHARGE IN PIP CONTEXT
“As always, legislative intent is the polestar that guides a court’s inquiry under the No-Fault Law,” including the PIP statute. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,141 So.3d 147, 154 (Fla. 2013)[38 Fla. L. Weekly S517a]. “Such intent is derived primarily from the language of the statute.” Allstate v. Holy Cross Hosp., Inc., 961 So. 2d 328, 334 (Fla. 2007)[32 Fla. L. Weekly S453a]. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001)[26 Fla. L. Weekly S747a].
“In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case.” Derius v. Allstate Indemnity Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998)[23 Fla. L. Weekly D1383a]. “There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.” Id. “[W]here a contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become a part of the contract.” Standard Acc. Ins. Co. v. Gavin, 184 So. 2d 229, 232 (Fla. 1st DCA 1966). PIP contracts are creatures of statute and are surrounded by numerous statutory provisions. Reasonableness in the PIP context is defined under section 627.736(5)(a), Florida Statutes, which provides that “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. Id. (emphasis added). The first criteria set forth in section (5)(a)(1) provides that consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute. The statute’s use of the copulative conjunction “and” establishes that evidence of the providers usual and customary charges can only be considered in conjunction with evidence of payments accepted by the provider involved in the dispute. The statute did not use the word “or” a disjunctive particle which would have allowed a medical provider to use either evidence of its usual and customary charges or evidence of its payment accepted as a valid methodology to establish its charges were reasonable. Pompano Horse Club v. State, 111 So. 801, 804 (Fla. 1927). The word “and” in a statute can only be construed as “or” when there is a clear expression of legislative intent which is contrary to the language of the statute. Byte International Corp. v. Maurice Gusman Residuary Trust Number 1, 629 So.2d 191, 192 (Fla. 3d DCA 1993). Here, each factor of (5)(a)(1) deals with reimbursement. As such, United Auto’s construction of the statute meets the legislative aim of determining the reasonableness of the charge based on reimbursements accepted by the provider and other information relating to the reasonableness of reimbursements and not charges. Thus, (5)(a)(1) does not involve a clear expression of legislative intent which is contrary to the plain language of the statute. Burger King Corp./CIGNA Ins. Co. v. Moreno, 689 So.2d 288, 289 (Fla. 1st DCA 1997)[22 Fla. L. Weekly D366c]. Therefore, the word “and” cannot be construed as “or”.
Neither can the catch-all factor of (5)(a)(1) be used to allow only evidence of usual and customary charges to establish reasonableness of the charge that its expert methodology was sanctioned by the statute. The catch-all factor of (5)(a)(1) provides that consideration may be given to “other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.” This provision specifically mentions reimbursements and it does not mention charges. The doctrine of “expressio unius est exclusio alterius,” prohibits the inclusion of charges in the catch-all provision. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 85 (Fla. 2000)[25 Fla. L. Weekly S120a]. This doctrine provides that when a law expressly describes a situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded. This doctrine is used to defeat an argument that a particular item or matter is included by implication with the scope of a statutory provision. St. John v. Coisman, 799 So.2d 1110, 1113 (Fla. 5th DCA 2001)[26 Fla. L. Weekly D2746a]. Accordingly, the mention in (5)(a)(1) of reimbursements implies the exclusion charges.
By its own terms the factors in (5)(a)(1) are all inclusive. The only time statutory factors are not all inclusive is when the list states the factors and also states that the factors are not limited to those that were enumerated. In those situations the plain language of the statute does not limit the trial court from considering unlisted factors. Hobbs v. State, 999 So.2d 1025, 1028 (Fla. 2008)[33 Fla. L. Weekly S1005a]. Therefore, the PIP statute measures the “reasonableness” of a charge based exclusively upon evidence of: (1) reimbursements; and (2) amounts charged and accepted by the provider involved in the dispute. The Supreme Court’s decision in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc.,141 So.3d 147 (Fla. 2013)[38 Fla. L. Weekly S517a] did not alter existing precedent which holds that it is the plaintiff’s burden to prove the reasonableness of its charges on a case-by-case basis “In other words, pursuant to subsection (5)(a)1 of the PIP statute, reasonableness is a fact-dependent inquiry determined by consideration of various factors. Id. at 155-56.CONCLUSIONS OF LAW
In the Instant case, the only facts presented by the Plaintiff as to the reasonableness of the charges was the affidavit of Sabino Ferro who based his opinion solely on what other providers charge. Mr. Ferro did not take into consideration reimbursements accepted by the provider involved in the dispute, nor did he consider reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages. The affidavit of Monica Johnson is sufficient to create an issue of fact as to the reasonableness of the Plaintiff’s charges. Ms. Johnson based her opinion on her eighteen years of experience and knowledge of reimbursements in the medical community for Miami, Dade-County, Florida, as well as her familiarity with accepted reimbursements from Personal Injury Protection (PIP) insurers, Medicare, Medicaid, Worker’s Compensation, as well as her knowledge of the usual and customary charges and payments accepted by All X-Ray, the provider involved in this dispute. The Plaintiff’s contention that the Defendant may not dispute the reasonableness of the charges at issue because it previously issued payment is without merit. Because section 627.736(4)(b)(6) allows an insurer to dispute the reasonableness of the charges at any time, including after payment of the claim, the fact that the Defendant previously issued payment in this matter does not dispose of the issue of the reasonableness of the plaintiff’s charges. See Coral Gables Chiropractic PLLC, a/a/o Ricardo Olivera v. United Automobile Insurance Company, 2016 WL 1039094 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D687a]
Therefore, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is DENIED.
