24 Fla. L. Weekly Supp. 563a

Online Reference: FLWSUPP 2407KEITNOT FINAL VERSION OF OPINION
Subsequent Changes at 24 Fla. L. Weekly Supp. 644aInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavits of medical provider’s operations and billing manager stating that charges billed to insurer were charged to all patients and insurance carriers and explaining how charges were set through phone calls to various medical providers who render similar services in community and consultation with provider’s medical director are not sufficient to establish non-existence of disputed issue of material fact regarding reasonableness of charges where affidavits fail to establish which providers were called, when they were called, what charges they reported, and content of medical director’s recommendation

MIAMI DADE COUNTY MRI CORP, a/a/o Aleshia Keith, 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. 12-19975 SP 23 (06). July 29, 2016. Spencer Multack, Judge. Counsel: Kenneth J. Dorchak, for Plaintiff. Ari D. Neimand, for Defendant.

RULING CHANGED ON REHEARING: 24 Fla. L. Weekly Supp. 644aORDER DENYING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT

This matter having come before the Court on this 23rd day of June 2016 on the Plaintiff’s Motion for Final Summary Judgment, and after having considered the argument of counsel present, having reviewed all the applicable documents in the Court file, and those which were presented to the Court at the hearing by the attorneys, after having reviewed all the case law provided by the attorneys and being fully advised of the premises thereof, the Court finds as follows:

This is an action for the recovery of PIP benefits pursuant to Fla. Stat. §627.736. Plaintiff’s Motion for Final Summary Judgment alleges that its charge(s) for service(s) billed were reasonable.¹ Thus, the only issue for this Court’s determination is whether the Plaintiff has properly billed a reasonable amount as required by §627.736(5)(a)1 Fla. Stat. (2011). Defendant disputes that Plaintiff’s charges are reasonable.

The inquiry on a motion for summary judgment is whether the moving party has demonstrated the absence of a genuine issue of material fact. See Hall v. Talcott, 191 So.2d 40 (Fla. 1966). The proof offered by the moving party must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Id. If the evidence presented by the parties is unclear or conflicting, there is an issue of material fact to be resolved by a jury, not this Court. An affidavit in support of a motion for summary judgment may not be based solely on factual conclusions or conclusions of law. Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971). However, the court should take a liberal reading of the papers filed by the non-moving party. Swift Indep. Packing Co. v. Basic Food Intern., Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984).

A plaintiff in a PIP case has the burden of establishing that its charges are reasonable and it is not the Defendant’s burden to prove the charges are unreasonable. See Derius v. All State Ins. Co., 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. Reasonableness of a medical provider’s charge is a fact-dependent inquiry determined by consideration of various factors. See GEICO v. Virtual Imaging, 141 So.3d 147, 156 (Fla. 2013) [38 Fla. L. Weekly S517a]. Pursuant to Fla. Stat. §627.736(5)(a)1, in determining a reasonable charge, “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.”

In support of its Motion for Final Summary Judgment, and to establish the charge was reasonable, the Plaintiff submitted two affidavits of Llina Milian, the operations manager/ billing manager/ custodian of records for Miami Dade County MRI Corp. The first affidavit authenticated the assignment of benefits and HCFA 1500 billing form for the date of service 11/15/2011. The affidavit also stated that the charge for each service billed by the Plaintiff represents the usual and customary charge for the services billed. The second affidavit delves into more detail and states that amount charged to the patient in the case sub judice was charged to all patients and insurance companies and had been reimbursed by other providers without reduction. Milian stated that the CPT code at issue and the charges were set, “by way of phone calls made to various medical providers in the community who render similar service as well as consultations with the medical director, Dr. Roberto Elias, M.D.” The affidavit included a list of PIP insurers who have paid the Plaintiff 80% of a reasonable charge without reduction since 2009. Further, the Plaintiff list four dateless examples of when the Defendant paid 80% of the submitted charge for the CPT codes in question.

The affidavits were accompanied by the deposition of Defendant’s Corporate Representative, Robert Columbie, a Notice of Intent to Rely of Defendant’s Answers to Interrogatories, and a Notice of Filing Relevant Portion of Trade Publication “Medical Fees in the United States” for 2008.

This Court finds Milian’s affidavits fail to establish the non-existence of a material fact in issue with regards to the charge of the Plaintiff being reasonable. Milian is not the person who set the charge and can only testify that these are the charges that were in existence when she began working for the Plaintiff in 2006. She only testifies that the charges were set by placing phone calls to other providers and consulting with Dr. Elias. The affidavit begs the questions; Who did the Plaintiff call? What year did the Plaintiff call? What were the charges of the other providers? When were they reimbursed? What was Dr. Elias’ recommendation? Can any of these answers be established with admissible evidence? The Court cannot ignore the absence of corroborating evidence that would support the Plaintiff’s position, and as such, finds that there are simply too many unanswered questions and missing facts to meet the required burden. If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party. Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1087c].

Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is DENIED.

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¹The issues of relation and medical necessity were previously stipulated to. Therefore, this is the only remaining issue in the case.