24 Fla. L. Weekly Supp. 240b

Online Reference: FLWSUPP 2403KWILInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charges — Affidavit of physician presented as fact witness rather than expert is not admissible and does not create triable issue as to reasonableness of charges — Affidavit would not preclude summary judgment if offered as expert opinion where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charges — Insurer cannot challenge medical necessity and relatedness of services where insurer made partial payment for services and did not assert lack of relatedness and necessity as affirmative defense — Section 627.736(4)(b), which provides that insurer may assert that claim was unrelated or not medically necessary at any time, does not allow insurer to challenge relatedness and necessity where there is no record evidence of insurer having made any such assertion in case

HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC, D/B/A STAND-UP MRI OF FORT LAUDERDALE, as assignee of Kristina Williams, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO13-000185(70). May 27, 2016. Honorable John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Christopher W. Kellam, Green Murphy & Murphy, PA, Fort Lauderdale, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION

FOR FINAL SUMMARY JUDGMENTThis cause came before the Court, on December 03, 2015, after due notice to the parties, on Plaintiff’s Motion for Final Summary Judgment. The amount in controversy for PIP benefits (and/or Med Pay benefits) is a total of $385.28 and at the time of the hearing, this case had been pending for 1,064 days. The court further notes that although the facts of each case are unique, this case is one that is part of a seemingly endless procession of cases where literally nothing changes other than the names of the assignor’s, the Dates of Service, and the attorneys who represent State Farm.

After careful consideration, the Court finds no genuine issue of material fact and hereby grants Final Summary Judgment in favor of the Plaintiff as to reasonableness, relatedness, and medical necessity.

Analysis and Findings of Fact re: Reasonableness

The Plaintiff filed this small claims lawsuit against the Defendant for breach of a contract of personal injury protection benefits (and/or med pay) under the Florida No-Fault law. It is undisputed that the Defendant’s policy requires the Defendant to pay 80% of all reasonable expenses. Reasonableness is a range, not a set number and the Plaintiff argues its charge is within the range of what is reasonable.

In determining whether a charge for a particular service or treatment is reasonable, there are two methods by which an insurer may calculate reimbursement: (1) the fact dependent method under Fla. Stat. § 627.736(5)(a)(1), or (2) by utilizing the permissive fee schedules under Fla. Stat. §627.736(5)(a)(2). These payment methods have been described as separate and distinct methods for evaluating the statute’s reasonable expense coverage mandate under Fla. Stat. § 627.736(1)(a). The insurer must choose the one payment methodology it will utilize for reimbursement and cannot alternate between two methods. Therefore, the primary question to be determined is whether State Farm has attempted to limit reimbursement under the statute’s schedule of maximum charges and whether its policy of insurance provides sufficient notice as required by the Florida Supreme Court case of Geico Gen. Ins. Co. v. Virtual Imaging Services, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

In this case, the Defendant received the Plaintiff’s bill of $1600 for each MRI and paid it based upon 200% of the Participating Level of Medicare Part B fee schedule for the region in which the services were rendered. There is no record evidence that the Defendant used any factors other than the Medicare Part B fee schedule when it issued payment to the Plaintiff. It is undisputed that, as a matter of law, the Defendant’s policy of insurance does not permit it to pay claims based solely upon 200% of the Medicare Part B fee schedule since Defendant did not elect the permissive payment methodology described in Florida Statute § 627.736(5)(a)(2) and Geico Gen. Ins. Co. v. Virtual Imaging Services, 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. In fact, in United Auto. Ins. Co. v. Health Diagnostics of Miami, LLC, d/b/a Stand-up MRI of Miami (a/a/o Yolanda Vasques), Case No.: CACE12-8641 (Fla. 17th Jud. Cir. Appellate 2013) [21 Fla. L. Weekly Supp. 401e], the Circuit Court for the Seventeenth Judicial Circuit, acting in its appellate capacity, affirmed the trial court’s final judgment — despite the fact that Plaintiff submitted no evidence as to the reasonableness of the charge — where the only evidence Defendant relied upon to oppose Plaintiff was the Medicare fee schedules. On October 09, 2014, the Fourth District Court of Appeal denied the petition for writ of certiorari.¹

It seems axiomatic to this Court that to permit an insurer who did not comply with the requirements set forth in Kingsway and Virtual Imaging, which if complied with would have allowed the Defendant to limit reimbursement to 80% of 200% of the Medicare Part B fee schedule, to nevertheless achieve the same exact result by relying exclusively on this same exact fee schedule but claiming that the payment methodology was based on (5)(a)(1) rather than (5)(a)(2) would lead to an absurd result that would circumvent the legislative intent of the statute as defined by the Florida Supreme Court.

The matter is ripe for Summary Judgment as there has been more than sufficient time for the parties to diligently take advantage of discovery opportunities, to complete all reasonable discovery, and any pending discovery would not be material to the issue(s) currently before the Court. It is further noted and pertinent to the court that in countless prior hearings the court has opined and asked the Defendant what analysis they have based the decision to pay precisely as provided in (5)(a)(2) then defend suit based upon (5)(a)(1) payment methodology. To date this court has been provided not one scintilla of evidence indicating that State Farm conducted any analysis subsequent to Kingsway, Virtual, or literally thousands of cases within this Circuit alone.

Plaintiff moves for Summary Judgment based on the sufficient and competent affidavit of Carmen Rodriguez, a corporate representative, who, based on substantial showing, avers that the amount of Plaintiff’s charge is reasonable. Additionally, Carmen Rodriguez indicates in paragraph 8 of the affidavit that “Plaintiff rendered diagnostic testing to the assignor, Kristina Williams, on October 15, 2009, at Plaintiff’s facility. A true and accurate copy of the medical bill is attached hereto as Exhibit 1.”

The Court finds that Carmen Rodriguez has significant personal experience and knowledge of the billing and collections aspect of the MRI industry and what is a reasonable charge for an MRI. She has reviewed over 50,000 claims. She is aware of what other MRI centers charge in the community and what the Plaintiff has been paid by PIP insurers that pay a reasonable amount (i.e., 80% to 100% of Plaintiff’s charge). Plaintiff also relies on four publications: Physician’s Fee and Coding Guide, Physicians Fee Reference, Ingenix and Medical Fees in the U.S. See Fla. Stat. §90.803(17) and United Auto. Ins. Co. v. Hallandale Open MRI, LLC (a/a/o Antonette Williams), 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App. Ct. 2013). Second tier certiorari was denied by the Fourth DCA. See United Auto. Ins. Co. v. Hallandale Open MRI, LLC (a/a/o Antonette Williams), 145 So. 3d 997 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1883c]. The 17th Circuit Opinion has been cited numerous times statewide to support Courts’ decisions to grant summary judgment/disposition in PIP cases.

In addition to the affidavit and evidence that Plaintiff relies upon as indicated in its motion for summary judgment, the Plaintiff also relies upon the law set forth in Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013) where Judge Lee set forth the following:

A plaintiff’s prima facie showing of the reasonableness of its 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. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (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. In the alternative, a Plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A Plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Ins. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn, Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Ct. 2001).

The Court finds that the Plaintiff met its burden of establishing the reasonableness of the MRI charges. See Hallandale Open MRI, LLC (a/a/o Antonette Williams). Since the Plaintiff has met its burden, the burden of proof now shifts to the Defendant to establish a genuine issue of material fact.

It is well settled that Defendant may not defeat a Motion for Summary Judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. See e.g., Hialeah Medical Assoc. Inc., (a/a/o Ana Lexcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Ct. App. 2014). It is not sufficient for the opposing party to merely assert that a genuine issue of material fact exists. It is equally well established in Florida that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony. See Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1770a]; Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954); Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982); and Cary v. Keene Corp., 472 So. 2d 851 (Fla. 1st DCA).

Dr. Dauer’s Affidavit is Legally and Factually Insufficient

Defendant relied on the affidavit of Dr. Dauer in an attempt to create a genuine issue of material fact to defeat Plaintiff’s motion for summary judgment. The Court is very familiar with Dr. Dauer’s affidavit as Defendant has relied on Dr. Dauer in numerous other cases where this Court has stricken Dr. Dauer in an expert capacity. Interestingly, in this case, Defendant is relying upon Dr. Dauer as a fact witness, not as an expert.

Since Dr. Dauer is being offered as a fact witness, the Court begins its analysis by looking at Fla. Stat. § 90.701, which states as follows:

Opinion testimony of lay witnesses. — If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

The Court also looks to Judge DeLuca’s well-reasoned opinion in Faye Imaging, Inc., (a/a/o Victor Martinez) v. State Farm Mutual Auto. Ins. Co., 23 Fla. L. Weekly Supp. 182a (Fla. Broward Cty. Ct. 2015). In that case, Judge DeLuca rejected Dr. Dauer’s opinion in an “expert” capacity and instead treated him as a lay witness. Judge DeLuca ultimately found that there was no competent admissible evidence to create a triable issue that the charged amount was unreasonable.

Additionally, the Court looks to Judge Lee’s well-reasoned opinion in Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward Cty. Ct. 2013). In that case, United Automobile Insurance Company relied on an expert witness, which Judge Lee found did not qualify as an expert pursuant to Fla. Stat. § 90.702(1). Since its witness did not qualify as an expert, United attempted to present the same witness under the guise of a fact witness. Judge Lee reasoned, in pertinent part, as follows:

In the alternative, the Defendant relies upon Monica Johnson as its corporate designee and fact witness. However, in this regard as well, the testimony and affidavit fail to present admissible evidence which would create a genuine issue of material fact. . . . Instead, the Defendant is attempting to cloak Ms. Johnson’s opinion testimony under the cover of fact testimony, which it clearly is not. The opinion offered (that 200% of Medicare is a reasonable amount for the service at issue) is inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1991), citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Ins. Co. v. Miami Neurology Rehabilitation Specialists, 19 Fla. L. Weekly Supp. 799a (11th Cir. Ct, 2012) (appellate capacity) (testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and notbased on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Essentially, Defendant’s corporate designee’s opinion is that 200% of Medicare is the amount United Automobile found to be reasonable, so she agrees with that position. (Dep. Monica Johnson part II, p. 83, 11. 18-19; p. 88, 11. 22-24). Ms. Johnson’s experience has been only to reimburse claims at 200% of Medicare Part B as she testified she pays all codes at 200% of Medicare Part B and has never allowed any reimbursement over 200% of Medicare Part B. (Dep. Monica Johnson, part II, p. 33, 11. 8-10; part I, p. 12, 11. 1-22). Thus, as a matter of law, the opinions offered by Monica Johnson are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory statements are not adequate to create an issue of fact and are insufficient to avoid summary judgment.

In the case at bar, Defendant’s attempt to dress Dr. Dauer up in different clothes and offer him as a new witness is to no avail. As a fact witness, the Court adopts Judge DeLuca’s and Judge Lee’s reasoning as set forth above and finds that Dr. Dauer’s testimony as a fact witness is not admissible² and does not create a genuine issue of material fact as to the reasonableness of Plaintiff’s charge.

If Dr. Dauer was presented as an expert witness, the Court finds his affidavit stating the billed amount is unreasonable is self-serving, conclusory, devoid of sufficient facts or data, is based on inadmissible hearsay, and lacks reliable principles, methodology, foundation or the basis for his opinions that the amount charged was unreasonable. His opinion is being rejected because the methodology is unsupported, he is not relying on relevant factors, and thus, he would be considered unqualified to give ultimate opinions on the reasonableness of the MRI charges. There was NO data attached to his affidavit. His resume fails to establish any qualifications to opine as to price of this MRI. The affidavit fails to establish he is competent to testify to matters stated therein as required by Florida law.

It is not sufficient to create a genuine issue of material fact simply because the Defendant found one radiologist that charged less than the Plaintiff. Further, the fact that Dr. Dauer decided to use the lowest payors in the community is simply insufficient to create a genuine issue of material fact. He fails to explain sufficiently why the charged amount is unreasonable.

Based on the above and the record, there is no evidence that Dr. Dauer is qualified to give any opinions in this case on what a reasonable charge is for the MRI at issue. His statement of what Medicare allows and what some in network health Insurers allow is simply insufficient and unmoving. His knowledge of what medicare and what some private insurance pay for MRIs does not make him qualified to state a billed amount is unreasonable in this case as there is no methodology or analysis. Dr. Dauer is simply not qualified to opine as an expert on what is a reasonable charge according to Fla. Stat. §90.702. His testimony is not based upon sufficient facts or data. His testimony is not the product of reliable principles. Since there is a lack of sufficient facts or data and there is a lack of reliable principles and methods there can be no reliable application of them. See Giaimo v. Florida Autosport, 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). His opinion based on his “extensive experience” is nothing more than pure opinion and therefore, unmoving. See Perez v. Bellsouth, 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]. As such, the Court rejects his “expert” opinions.

Although the Court reviews affidavits on a case-by-case basis, this Court is mindful of the fact that numerous County Courts in South Florida have also rejected Dr. Dauer’s affidavit to defeat Summary Judgment and Summary Disposition on price. See Hallandale Open a/a/o Vilatte v. United, 22 Fla. L. Weekly Supp. 851a (Fla. Broward County Court 2015, Judge Miranda); Millennium Radiology a/a/o Rosendo Fernandez v. United Auto, 13-016575 COCE 51 (Fla. Broward County Court 2015, Judge Dishowitz) [23 Fla. L. Weekly Supp. 368b]; Chiropractic Radiology a/a/o Jackson v. State Farm, Case number 13-1106 SP 24 (Fla. Dade Cty Court 2015, Judge Cannava); Milllennium Radiology v. United Auto, 13-01357 CONO 73 and 13-03346 CONO 73 (Fla. Broward County 2015, Judge DeLuca); Millennium Radiology a/a/o Diaz v. United, 12-006125 COCE 54 (Fla. Broward County Court 2015, Judge Zaccor); Roberto Rivera Morales /a/o Delva v. State Farm, 12-02735 SP 26 (04) (Fla. Dade County Court 2015, Judge King)(see the numerous cases cited therein); A1A Management Services d/b/a Roberto Morales v. State Farm, 13-15069 SP25 (01)(Fla. Dade County 2015, Judge Stuzin)(a Daubert hearing was conducted and the judge did not accept Dr. Dauer’s Opinions).

Lastly, Dr. Dauer’s affidavit fails to provide what MRI providers accept as payment in full, what PIP insurers pay when the insurer pays based on a reasonable amount, a factual basis to establish that he is qualified to give opinions on what a reasonable charge is for an MRI in the same location as the Plaintiff for the same year at issue in this lawsuit, or an analysis as to how he arrived at his opinions. See State Farm v. Hallandale Open MRI, LLC (a/a/o Richard Ayer), Case No. CACE14-011565(AP) (Fla. 17th Jud. Cir. Appellate 2015) [24 Fla. L. Weekly Supp. 106b].

Thus, based on Dr. Dauer’s affidavit, there is simply no competent admissible evidence to create a genuine issue of material fact that the charged amount was unreasonable. The fact that another MRI center charged less, Medicare and health insurance allow less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a genuine issue of material fact that the Plaintiff’s charge was unreasonable. See Hillsborough County Hospital v. Fernandez, 664 So. 2d 1071 (Fla. 2nd DCA 1995) [20 Fla. L. Weekly D2650b] and State Farm v. New Smyrna Imaging a/a/o Ryan Campbell, Case Number 2013-10005-APCC (Fla. 7th Circuit Court 2014) [22 Fla. L. Weekly Supp. 508a]. Dr. Dauer’s affidavit fails to set forth a valid basis to explain why the Plaintiff’s charge is unreasonable simply because his MRI center charges less and Medicare and health insurance pay less. In fact, the Defendant did not point to one Broward County Judge that agrees with this argument.

State Farm has not rebutted this evidence in the record or offered any proof that the charge is unreasonable, other than the self-serving, conclusory affidavit of Dr. Dauer. Finding the Plaintiff’s charge is unreasonable based on what Medicare and private insurance allow would require the improper stacking of inferences as Medicare pays what the government sets forth without any regard to what is a reasonable amount for a particular service. While this Court will draw all possible reasonable inferences of material fact in favor of the Defendant, this Court cannot find the inference that since Medicare and health insurance pay less than the billed amount, there is a genuine issue of material fact as to what is a reasonable charge. This would not be a reasonable inference to the exclusion of any other reasonable inference based on this record. The purpose of PIP insurance is prompt and speedy payment of medical claims. PIP insurers cannot simply point to a medical provider that charged less, Medicare and some health insurers to defeat Plaintiff’s motion for summary judgment based on a valid affidavit that supports the Plaintiff’s motion.

Finally, State Farm’s reliance on Medicare is not persuasive as Medicare has been held to be social welfare. See Atkins v. Allstate, 382 So. 2d 1276 (Fla. 3d 1980) where the court held:

But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope.

In the appellate decision of Hialeah Medical Assoc a/a/o Lexcano v. United Auto, 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. App. Court 2014) the appellate court held “Medicare fee schedules are not relevant in PIP cases, and should not be used.” In State Farm v. Florida Wellness a/a/o Alonso, 13-022796 (Fla. 17th Cir. Court 2015) [23 Fla. L. Weekly Supp. 88a] the appellate court in Broward affirmed the trial judge which refused to consider an affidavit from Darrell Spell wherein he opined a charge was unreasonable based on Medicare and Medicaid. Here, Dr. Dauer does not create a genuine issue of material fact because his opinions are not based on relevant or sufficient data and he has performed no analysis or investigation to justify his opinions.

As such, the Court finds that State Farm did not meet its burden to establish a genuine issue of material fact as to the reasonableness of the charge for the Plaintiff’s MRI.

Accordingly, Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to reasonableness for the reasons set forth above and on the record, in the Plaintiff’s motion for summary judgment, and in the documents relied upon by the Plaintiff.

Analysis and Findings of Fact re: Medical Necessity and Relatedness

As mentioned above, Defendant allowed the services billed by the Plaintiff in this case, but reduced the amount allowed when making partial payment based on the Medicare Part B fee schedule. Pursuant to both the Defendant’s policy of insurance and the Florida No-Fault statute, each set forth below, only charges for medically necessary and related treatment are covered medical expenses. It is axiomatic that Defendant’s payment, which if made pursuant to the terms of its policy of insurance, represents a determination by Defendant that Plaintiff’s services were “covered services” (i.e., that the services were medically necessary and related). See e.g., Pan Am Diagnostic Services, Inc., d/b/a Pan Am Diagnostic of Orlando (a/a/o Junior Valceus) v. State Farm Fire and Casualty Ins. Co., 23 Fla. L. Weekly Supp. 374b (Fla. Broward Cty. Ct. 2015).

Defendant’s policy of insurance states, in relevant part, the following:³

What We Pay

1. Medical Expenses. 80% of all reasonable expenses incurred for:

a. medically necessary medical, surgical, X-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, eyeglasses, hearing aids and prosthetic devices; and

b. necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs.

Florida Statute §627.736 states, in relevant part, the following:

(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:

(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing. . .

Defendant’s policy goes further and specifically provides that it will not pay any services that the No Fault act does not require it to pay:⁴

“We will not pay any charge that the No-Fault Act does not require us to pay, or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.”

After careful consideration of the applicable Florida Statutes, relevant case law, and legislative history of the applicable Florida Statutes, the Court finds, for the reasons set forth below, that State Farm cannot now challenge relatedness and medically necessity under the facts and circumstances of this case and that the services performed by the Plaintiff are related and medically necessary.

Under the facts and circumstances of this case, the issue of medical necessity and relatedness are not properly before the court since at the time of this hearing State Farm failed to timely raise medical necessity or relatedness as an affirmative defense

Florida Rule of Civil Procedure 1.110(d) provides that “a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense.” Florida Rule of Civil Procedure 1.140(b) provides that “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]” In Florida, it is well settled that if an affirmative defense is not pleaded it is considered waived. See e.g., Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So. 3d 602 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D145a]; Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971) (“Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits.”).

In a typical lawsuit for unpaid personal injury protection benefits it is Plaintiff’s burden to prove reasonableness, medical necessity, and relatedness. However, Plaintiff is not required to prove the medical necessity and relatedness of services that Defendant has conceded and already paid.⁵ As explained in more detail below, to challenge the medical necessity or relatedness of a previously paid service under the facts and circumstances of this case, the burden is on the Defendant to assert a defense⁶ seeking a reversal of the prior payment and allege a legally cognizable basis for its change of position.⁷ In this case, Defendant did not timely raise such a challenge as an affirmative defense and further was unable to show even a mere scintilla of evidence that would justify a challenge to the medical necessity and relatedness of the claimed services.

State Farm’s reliance on Fla. Stat. § 627.736(4)(b) is misplaced

Fla. Stat. § 627.736(4)(b) provides, in pertinent part, as follows:

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. . . . When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, . . . This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, . . . Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.

Defendant relies on Fla. Stat. § 627.736(4)(b) for the proposition that it can challenge medical necessity and relatedness at any time. The Court believes that Defendant misinterprets this statute by over reading the plain statutory language and further by suggesting an interpretation that leads to an absurd result.

It is well settled that an interpretation of a statute cannot be given effect if it leads to an unreasonable or ridiculous result.⁸ Here, by construing Fla. Stat. § 627.736(4)(b) in such a manner that would allow an insurer — in perpetuity — to simply decide to change its mind and without asserting mistake, fraud, misrepresentation, etc. demand the return of its prior payment is equally absurd and the Court will not interpret the statute to lead to such an absurd result.

The stated purpose of the PIP statute is to provide for swift and virtually automatic payment of an insured’s medical bills so Florida insurance consumers can go on with their lives without the financial burden of unpaid medical bills hanging over their heads. To construe Fla. Stat. § 627.736(4)(b) in a manner that extends its application into perpetuity defies logic, common sense, and the entire purpose of the overall legislation codified in the Florida Motor Vehicle No-Fault Act.

The Court also finds support for Plaintiff’s argument based on the plain language of subsection (4)(b), which requires the Defendant to “assert”⁹ that services previously paid were not medically necessary or related. In this case, there is no record evidence demonstrating that Defendant timely made such an assertion, there is no IME conducted in this case, nor is there a Peer Review. The complete lack of evidence prior to suit of any concerns as to relatedness or necessity is telling. The fact that Defendant figuratively on the eve of the Motion for Summary Disposition chooses to raise an issue in an attempt to defeat Summary Disposition that has not been affirmatively pled, is not rebutted at any point prior to payment, is not substantiated by an evaluation that could have been conducted pursuant to the Statute is telling under Summary Disposition.

Accordingly, the Court finds that there is no genuine issue of material fact remaining as to the issues of relatedness and medical necessity and hereby enters Final Summary Judgment in favor of the Plaintiff for the reasons set forth above and on the record.

ORDERED AND ADJUDGED that Plaintiff, HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC, D/B/A STAND-UP MRI OF FORT LAUDERDALE, a/a/o Kristina Williams does have and recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $385.28, plus prejudgment interest of $194.24 for a total sum of $579.52, which shall bear interest at the legal rate of 4.75%, for all of which let execution issue.

It is further,

ADJUDGED, that Plaintiff is entitled to reasonable attorneys’ fees and costs and this Court retains jurisdiction to determine the amount of same.

__________________

¹United Auto. Ins. Co. v. Health Diagnostics of Miami, 4D14-1035 (Fla. 4th DCA 2014).

²See e.g., State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (Fla. 17th Cir. Ct. App. 2013); Pan Am Diagnostic Services, Inc. (a/a/o Fritz Telusma) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013); and Pan Am Diagnostic Services, Inc. (a/a/o Demetrius A. Sears) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 937a (Fla. Broward Cty. Ct. 2013).

³Amendatory Endorsement 6910.3 section 5(b) page 3 and 4.

⁴Amendatory Endorsement 6910.3 section 5(b) page 4.

⁵Derius v. Allstate Indemnity, 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a], often cited for the proposition that proving medical necessity and reasonableness is always plaintiff’s burden, is inapplicable here. The litigation there involved the reasonableness of a charge Allstate had already paid and the medical necessity and reasonableness of several charges Allstate had not paid.

⁶See Fla.R.Civ.P. 1.140(b): “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, . . .” (Emphasis added).

⁷E.g., Fraud, misrepresentation, mistake, etc.

⁸See City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993) (a statute’s plain and ordinary meaning must be given effect unless it leads to an unreasonable or ridiculous result). In Spence-Jones v. Dunn, 38 Fla. L. Weekly D1575b n. 2 (Fla. 3d DCA July 24, 2013), the court held that a statutory provision will not be construed in such a way so as to render meaningless or absurd any other statutory provision. See also Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000) [25 Fla. L. Weekly S1126a].

⁹Assertion is defined in Black’s Law Dictionary as “a declaration or allegation.”