24 Fla. L. Weekly Supp. 644a
Online Reference: FLWSUPP 2408KEITInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit billing clerk filed in support of provider’s motion for summary judgment on issue of reasonableness of charge was sufficient to shift burden to defendant to come forward with evidence sufficient to establish existence of factual dispute — Opposing affidavit of insurer’s litigation adjuster was not supported by sufficient facts — Mere existence of Medicare, HMO, and PPO rates that are lower than actual charges in community does not create issue of fact as to reasonableness of a medical provider’s charge that exceeds such reimbursement rates — Provider’s motion for summary judgment granted
MIAMI DADE COUNTY MRI, CORP., (a/a/o Aleshia Keith), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-19975 SP 23 (06). January 5, 2017. Spencer Multack, Judge. Counsel: Kenneth J. Dorchak, for Plaintiff. Ari Neimand, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENTON RECONSIDERATION[Original Opinion at 24 Fla. L. Weekly Supp. 563a]
THIS CAUSE came before the Court on November 28, 2016 for hearing of the Plaintiff’s Motion for Reconsideration of the Order Denying Plaintiff’s Motion for Summary Judgment1. Upon further review, and application of Harvey Building Inc. v. Hayley, 175 So.2d 780 (Fla. 1965), this Court finds the Plaintiff has submitted sufficient evidence to shift the burden to the Defendant, who was unable to establish a fact in issue as to the reasonableness of the Plaintiff’s charge. Based on the foregoing, the Court finds as follows:
This is a matter for the reimbursement of PIP benefits in the amount of $134.22 that has been litigated since 2012. In support of their motion, Plaintiff filed two affidavits of Lina Milian (Plaintiff’s billing clerk), the deposition of Robert Columbine (Defendant’s litigation adjuster), answers to interrogatories, and a notice of intent to rely on the publication Medical Fees in the United States.
Milian stated in her affidavit that she has been employed with the Plaintiff since 2006 and had reviewed hundreds to thousands of explanations of benefits. Her scope of employment included reviewing payments from PIP insurance companies to ensure that proper payment has been received. She stated that the charge submitted to the Defendant in this matter represent the Plaintiff’s usual and customary charge. She explained that the usual and customary charge is the charge billed to all insurance companies for the service at issue. She also provided examples of instances where the Defendant has reimbursed the Plaintiff for the services at issue at the rate requested by the Plaintiff. In addition to the affidavit, the Plaintiff has filed portions of the trade publication entitled Medical Fees in the United States, which this Court judicially notes pursuant to 90.803(17) F.S. (2016). A comparison of the Plaintiff’s charges to those in Medical Fees in the United States establishes that Plaintiff’s charges are in the range of customary charges for like services. The deposition of Robert Columbine and the answers to the interrogatories shed light on the Defendant’s application of 627.736(5)(a)(2)(f) as the only method to reimburse the Plaintiff’s charges.
As stated above, the Court now finds, consistent with Harvey Building Inc. v. Hayley, 175 So.2d 780 (Fla. 1965), that the Plaintiff has presented sufficient evidence to shift the burden to the Defendant, who must establish that a question of material fact exists. As explained in Harvey Building, Inc.,
The initial burden [for summary judgment], therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent’s witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.
The initial burden is further elaborated on in Wells Fargo v. Bilecki, 192 So.3d 559 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1179a] ([o]nly where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence) and Lenhal Realty, Inc. v. Transmerican Commercial Finance Corp. 615 So.2d 207 (Fla. 4th DCA 1993) (the burden is initially on the movant for summary judgment to demonstrate the nonexistence of any question of material fact, and only when the movant has tendered competent evidence in support of its motion does the burden shift and fall on the other party to come forward with opposing evidence to show that a question of material fact exists.)
In opposition to the Plaintiff’s motion, the Defendant has filed the affidavit of John A. O’Hara2, the litigation adjuster for the Defendant, who offers an opinion that the Plaintiff’s charges are not reasonable3. Mr. O’Hara bases this opinion on a “methodology,” which he describes as:
“In other words, in determining what is a reasonable chare for a particular service/supply, I review: 1) the usual and customary charges and payments accepted by the provider at issue (who submitted the charge), 2) the reimbursement levels in the community and 3) various state and federal fee schedules applicable to automobile and other insurance coverages.”
However, the affidavit is supported by no cognizable facts other than general statements such as:
“In utilizing this criteria, I reviewed statements of PIP providers in the South Florida area, taking into consideration their typical reimbursements from PIP insures, cash patients, Medicare, and HMO and PPO insurers. . . . .I relied on my knowledge and an experience with HMO and PPO agreements for my own health insurance. . . .I relied upon EOB’s from HMO and PPO insurers which I have seen throughout my employment. . . .I relied on my knowledge of the reimbursement of cash patients, as well as Medicare Fee Schedules, Worker’s Compensation Fee Schedules, and CHAMPUS.”
Mr. O’Hara was not tendered as an expert by the Defendant and assuming arguendo he was, the Court finds that O’Hara is not competent to testify as his opinion is not based upon sufficient facts or data pursuant to 90.702(1) Fla. Stat. (2013). Thus, the Court cannot consider his testimony as the rigors of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), have not been met.
Further, the affidavit fails to qualify O’Hara’s opinion as a lay witness. 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 Insurance Company v. Miami Neurology Rehabilitation Specialists A/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Thus, as a matter of law, the opinions offered by Mr. O’Hara are not rationally based on his own perception and are not the type of lay opinions which can be relied upon by the Defendant to defeat summary judgment4 .
Lastly, the Court finds that the mere existence of Medicare and HMO and PPO rates that are lower than actual charges in the community do not create an issue of fact as to the reasonableness of a medical provider’s charge that exceeds such reimbursement rates. Atkins v. Allstate Insurance Company, 382 So.2d 1276 (Fla. 3rd DCA 1980). Medicare, HMO and PPO reimbursements are not relevant as to the issue of reasonableness of charges. See Hialeah Medical, Inc., a/a/o Ana Lexcano v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 487b (11th Cir. App. 2013); Virtual Imaging Services, Inc., (a/a/o Framcoise Leon) v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 515a (11th Cir. App. 2015); Virtual Imaging Services, Inc., (a/a/o Jacqueline Perez, Rolando Santana & Alberto Galindo Alfonso) v. United Automobile Insurance Company, 23 Fla. L. Weekly Supp. 304a. (11th Cir. App. 2015). A party 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. Reflex, N.V. v. UMET Trust, 336 So.2d 473 (Fla. 3rd DCA 1976).
In order to grant a summary judgment motion, the trial court must find by competent evidence that no genuine issue of material fact is in dispute, and thus, the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510. For the reasons stated above, the Court finds that the Plaintiff has established their burden and the Defendant has not come forward with any admissible evidence demonstrating the amounts charged by the Plaintiff are unreasonable; therefore, no triable issue exists in this matter.
Accordingly, the Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED, and a final judgment is hereby entered in favor of the Plaintiff, MIAMI DADE COUNTY MRI, CORP., 411 S.W. 27th Avenue, Miami, FL 33135, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the principal amount of $134.22, representing payment of PIP benefits, for which let execution issue and which shall bear interest at the applicable statutory rate.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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1Dated July 29, 2016
2This Court entered Final Summary Judgment in the case of Miami Dade County MRI (a/a/o Erlin Duran) v. United Automobile Insurance Company, 12-13550SP23. In that matter, the Court analyzed the Defendant’s affidavit of insurance adjuster Denorah Lang and found that the affidavit was insufficient to create an issue of fact. The affidavit John O’Hara in the case sub judice, is verbatim (punctuation included) to the aforesaid affidavit of Denorah Lang, with the exception of one paragraph. Lang’s affidavit contains paragraph 7, which attempts to establish a factual basis for her opinion. O’Hara’s affidavit does not contain such a paragraph.
3See paragraph 7 of Affidavit of John A. O’Hara
4This Court finds guidance from Millennium Radiology, LLC. V United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 136b (Broward County, July 14, 2014, Judge Deluca).
