24 Fla. L. Weekly Supp. 989a
Online Reference: FLWSUPP 2411BARRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Genuine issue of material facts exists as to whether amount sought by provider for CPT code at issue was reasonable — Plaintiff’s motion for summary judgment denied
MILLENNIUM RADIOLOGY, LLC, a/a/o Robert Barretti, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 12-11287 SP 23 (06). December 5, 2016. Spencer Multack, Judge. Counsel: Gary Marks, for Plaintiff. Sean M. Sweeney, House Counsel — Trial Division, United Automobile Ins. Co., Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
This case involves a claim for PIP benefits pursuant to Florida’s Motor Vehicle No Fault Law, Fla. Stat. 627.736. The sole issue addressed in the motion and discussed at the hearing is whether the charges submitted by Plaintiff are “Reasonable”. The only issue to be resolved by this Court is whether, subject to the requirements of F.R.C.P. 1.510, Plaintiff has proven as a matter of law that the charges of Plaintiff are “Reasonable” pursuant to 627.736(5)(a)1.
In support of its argument that the charges of Plaintiff are Reasonable, Plaintiff has filed and relies on the affidavit of Roberta Kahana, the Corporate Representative and Owner of Plaintiff. In opposition, Defendant has filed the affidavit of Corporate Representative and Litigation Adjuster Monica Johnson (with attachments), the affidavit of expert medical physician Dr. Edward Dauer (with attachments), and the sworn deposition testimony of Roberta Kahana.
The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977). A summary judgment should not be granted unless the material facts are so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So.2d 94 (Fla. 1957). 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 (Fla. 3d DCA 1977).
As explained in Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965),
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.)
The Court finds that the affidavit of Roberta Kahana, in this matter, satisfies the initial burden as defined Harvey v. Haley, and is sufficient to shift the burden to the Defendant. The Defendant has submitted the affidavit of Dr. Edward Dauer and Monica Johnson. Specifically as to Dr. Dauer’s affidavit submitted in this1 matter, the Court finds that his affidavit satisfies the rigors of F.S. 90.702. The affidavit opines, based upon sufficient facts and data applied to this case, that the Plaintiff’s charge of $2150 for CPT 72141 is unreasonable. This Court does not reach the admissibility as to Monica Johnson’s affidavit, as Dr. Dauer’s affidavit shows that a genuine issue of material fact exists. See McCabe v. Fla. Power & Light Co., 68 So.3d 995 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1966b] (summary judgment should only be granted where the facts are ‘so crystalized’ that nothing remains but questions of law).
THEREFORE, based upon the above cited authority, the Plaintiff’s Motion for Summary Judgment is DENIED.
__________________
1The Court has reviewed and ruled on several previous affidavits of Dr. Dauer, in other cases, resulting in the striking of the affidavits for failure to comply with 90.702. The Court reviews each affidavit independently and, as such, has found that this particular affidavit meets Daubert criteria for the specific set of facts in this matter.
