24 Fla. L. Weekly Supp. 990c
Online Reference: FLWSUPP 2411MEROInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavit of medical provider that merely tracks language of section 627.736(5)(a)1 and attaches bills submitted to insurer without addressing any specifics of treatment and rates in community fails to establish that no genuine issue of fact exists as to reasonableness of charges — Motion for summary judgment is denied
MARC K. WEINBERG, DC, PA (a/a/o Emmanuel Merone) Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-000887SP23. October 21, 2016. Spencer Multack, Judge. Counsel: Vincent J. Rutigliano, Rosenberg & Rosenberg, PA, Hollywood, for Plaintiff. Shanelle Romilus, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
This matter came before the Court on September 26, 2016 for the Plaintiff’s Motion for Final Summary Judgment. This Court held a hearing where it received evidence and argument from both Defendant and Plaintiff on the issue of the reasonableness1 of the Plaintiff’s charge. Additionally, this Court has reviewed and become familiar with the record in his matter. The Court rules as follows:
Plaintiff, Marc K. Weinberg, DC, PA, brought the instant breach of contract action for Personal Injury Protection (“PIP”) benefits for medical services rendered to the insured, Emmanuel Merone, following a motor vehicle accident. The treatment of the insured lasted approximately 14.5 weeks and consisted of approximately 30 visits. The total submitted charges were $8,155.00, for which the Defendant reimbursed the Plaintiff $3,660.10. The Plaintiff moves for summary judgment and asserts that no genuine issue of material fact exists as to the reasonableness of its charge.
In support of its Motion of Summary Judgment the Plaintiff filed the two-page Affidavit of Dr. Marc K. Weinberg, along with numerous HCFA 1500 forms. Dr. Weinberg’s affidavit states that he owns AAA Chiropractic Centers and that the attached HCFA forms represent the “usual and customary amount that AAA Chiropractic Centers charged for said services or supplies at the time they were provided.” Dr. Weinberg offers one additional paragraph in the affidavit that states he reviewed Medical Fees in the United States fee guideline when setting his fees and also consulted with other providers. The affidavit is silent as to when Dr. Weinberg consulted the fee guideline or the other providers. The affidavit is also silent as to the Plaintiff’s actual numerical charge compared to any other provider in the community. Rather, Dr. Weinberg states that the amount charged by AAA Chiropractic Centers is, “within the usual and customary range” set forth by the fee guidelines and what other providers in his area charged for similar service. Further, the Court finds that Dr. Weinberg is a fact witness for the purpose of the Plaintiff’s Motion for Summary Judgment, not an expert witness as the Defendant argues.
The Plaintiff relies on A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] to hold that a bill for medical services is prima facie evidence of the reasonableness of the Plaintiff’s charges. A.J. v. State is a case dealing with the payment of criminal restitution, where the Fourth District Court of appeal stated, “A medical bill constitutes the provider’s opinion of a reasonable charge for the services and an offer to settle that amount.” This Court agrees that a medical bill constitutes the provider’s opinion of a reasonable charge2, however it is clear that the Fourth District Court of Appeal did not state that in a PIP case, on a Motion for Summary Judgment, the Plaintiff’s submission of bills establishes the prima facie burden of reasonableness. Rather, reasonableness of a charge is established pursuant to sec. 627.736(5)(a)(1) Fla. Stat. (2010), which states:
In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
Dr. Weinberg’s affidavit does little more than track the language of the statute and attach the bills he submitted to Star Casualty. The affidavit does not address any specifics (dates of treatment, types of treatment, charges for treatment, payment for treatment, rates in the community, etc.) as to the case sub judice with the exception of the caption. The affidavit is boilerplate and completely lacking the substance necessary to grant a motion for summary judgment as to 627.736(5)(a)(1).
A moving party is entitled to final summary judgment as a matter of law when there is no genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). The movant must demonstrate conclusively and to a certainty from the record that the non-movant cannot plead or otherwise raise a genuine issue of material fact. Coast Cities Coaches, Inc. v. Dade County, 178 So.2d 703 (Fla.1965); Beach Higher Power Corp. v. Granados, 717 So.2d 563, 565 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1763a]. Where the record demonstrates the possibility of a disputed fact, summary judgment is improper. Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. Every possible inference must be viewed in favor of the non-moving party and, if there is any doubt that a material issue remains unresolved, summary judgment must be reversed. Moore v. Morris, 475 So.2d 666 (Fla.1985).
In this matter, the Plaintiff has failed to meet its burden establishing that no genuine issue of material facts exists, and from the face of the record, an issue of fact remains as to the reasonableness of the Plaintiff’s charge. Even if the moving party files an affidavit in support of its motion for summary judgment, the nonmoving party need not file a counter-affidavit or other countervailing evidence if the court file contains other competent proof, such as depositions, admissions, or answers to interrogatories, that contradicts the moving party’s claim. Land Development Services, Inc. v. Gulf View Townhomes, 75 So.3d 865 (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D2764c]. The Court offers no ruling as to the Dr. Mathesie’s Daubert qualification, as the Defendant’s affidavit is immaterial at this juncture.
Therefore, for the reasons set forth herein, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgement is hereby DENIED.
__________________
1The Court previously entered summary judgment on the issue of relatedness and medical necessity by separate order dated December 14, 2015.
2It is safe to say that any bill a consumer receives is an opinion by a service provider as to the reasonable charge for its services.
