24 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 2405CADEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charge — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavit of physician presented as fact witness rather than expert is not admissible and does not create triable issue as to reasonableness of charge — 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 charge — Insurer’s technical admissions admit medical necessity and relatedness of charge — Even if admissions were disregarded, 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 — Even if insurer had timely contested relatedness and necessity of services, affidavit filed by insurer on issue was untimely and was legally and factually insufficient to raise disputed issue of material fact

OPEN MRI OF BOCA, LLC, a/a/o Marie Cadet, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-009434(70). May 27, 2016. John D. Fry, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Christopher 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 08, 2015, and again on May 04, 2016, 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 $527.26 and at the time of the initial hearing, this case had been pending for 1,149 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, medical necessity, and relatedness.

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. Based on the reasons set forth below, the Court agrees with Plaintiff that its charge of $1800 for the CPT code at issue in this lawsuit 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 $1,800 for the MRI (i.e., CPT Code 72148) 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]. See e.g., State Farm Mutual Auto. Ins. Co. v. Pembroke Pines MRI, Inc. (a/a/o Elias Cruz), 171 So. 3d 814, 817 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1879a]:

State Farm did not adopt the limitations for reimbursement allowed by section 627.736(5)a.2.f., Florida Statutes (2011), which would have allowed it to cap reimbursement based on 200% of the Medicare rate. An insurer must expressly and specifically incorporate the permissive statutory provisions into the policy in order to limit payment. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway Amigo Inc. Co. v. Ocean Health, Inc., 63 So. 3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

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 issues 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 Patrick Lopez, a shareholder/owner of the Plaintiff, who, based on a substantial showing, avers that the amount of Plaintiff’s charge for the MRI at issue in this lawsuit is reasonable. Additionally, Patrick Lopez indicates in paragraph 6 of the affidavit that “Plaintiff rendered diagnostic testing to the assignor, Marie Cadet, on May 13, 2011, at Plaintiff’s facility. A true and accurate copy of the medical bill is attached hereto as Exhibit 1.”

The Court finds that Patrick Lopez has significant personal experience and knowledge of the billing and collections aspect of the MRI industry and what is a reasonable charge for each of the MRIs at issue. He has reviewed over 30,000 claims. He is aware of what other MRI providers charge in the community and what the Plaintiff has been paid by PIP insurers, including State Farm, 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 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).

Even without this, the Court finds that the Plaintiff met its burden of establishing the reasonableness of the MRI charge. 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 a 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 as 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 not based 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 admissible for its intended purpose¹ 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 charge. There was no relevant 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 did. 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. In fact, Defendant did not point to a single opinion where Dr. Dauer’s affidavit has been accepted. See e.g., 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 — Judge DeLuca); Hallandale Open MRI, LLC (a/a/o Vilatte) v. United Auto. Ins. Co., 22 Fla. L. Weekly Supp. 851a (Fla. Broward Cty. Ct. 2015 — Judge Miranda); Millennium Radiology a/a/o Rosendo Fernandez v.United Auto. Ins. Co., Case No. 13-016575 COCE 51 (Fla. Broward Cty. Ct. 2015 — Judge Dishowitz) [23 Fla. L. Weekly Supp. 368b]; Chiropractic Radiology a/a/o Jackson v. State Farm, Case No. 13-1106 SP 24 (Fla. Dade Cty. Ct. 2015 — Judge Cannava); Millennium Radiology v. United Auto, 13-01357 CONO 73 and 13-03346 CONO 73 (Fla. Broward Cty. Ct. 2015 — Judge DeLuca); Millennium Radiology a/a/o Diaz v. United, 12-006125 COCE 54 (Fla. Broward Cty. Ct. 2015 — Judge Zaccor) [22 Fla. L. Weekly Supp. 1100a]; Roberto Rivera Morales a/a/o Delva v. State Farm, 12-02735 SP 26 (04) (Fla. Dade Cty. Ct. 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 Cty. Ct. 2015 — Judge Stuzin)(a Daubert hearing was conducted and the judge did not accept Dr. Dauer’s Opinions). This Court agrees with the well-reasoned opinions set forth above and adopts their analysis and conclusions.

Additionally, 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]. The failure to include this information is fatal to the Defendant’s position.

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, health insurance, etc. 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) 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

The Court begins its analysis by pointing out that Plaintiff propounded its first request for admissions on January 15, 2013.² On March 04, 2015, the Court entered an order on case management and imposing time limitations. This order set forth a deadline to complete discovery and to file and set motions, both of which have expired. Plaintiff timely filed its motion for final summary judgment on September 25, 2015. Plaintiff filed its notice of hearing for its summary judgment on October 27, 2015, for the hearing to be conducted on December 08, 2015. Since Plaintiff propounded the request for admissions, 1,057 days have passed and Defendant has still failed to seek relief from its technical admissions. Based on Defendant’s technical admissions alone, the Court could stop its analysis here and the Plaintiff would prevail. Even if the Court disregarded the technical admissions, Plaintiff still prevails based on the analysis set forth below.

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 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, 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.

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.

As mentioned above, 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 made such an assertion. In fact, Defendant made no effort whatsoever to challenge medical necessity or relatedness in this lawsuit until December 04, 2015 — 1,145 days into litigation and several days before the hearing on Plaintiff’s motion for final summary judgment. The Court questions why the Defendant would wait this long when the Defendant was in possession of all of the same information years ago.

Even if the Court were to find, which it does not, that State Farm did timely contest medical necessity and relatedness, the Court would not consider the affidavit of Dr. Glen Siegel, D.C. because it was untimely. Rule 1.510(c) of the Florida Rules of Civil Procedure provides, in pertinent part, as follows:

The adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party shall serve a copy on the movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing.

The hearing on Plaintiff’s motion for summary judgment was scheduled for Tuesday, December 08, 2015. State Farm filed Dr. Glen Siegel’s affidavit at 11:56 a.m. on December 04, 2015, but did not deliver the affidavit to the Plaintiff’s attorney in compliance with Rule 1.510(c). State Farm argued that it faxed the affidavit to Plaintiff’s attorney on December 04, 2015, but this was not in compliance with Rules 1.510(c) or 1.080 of the Florida Rules of Civil Procedure. Additionally, the fax was not in compliance with Rule 2.516 of the Florida Rules of Judicial Administration. See e.g., Pee v. Aaron, 719 So. 2d 372 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2358b]; County Line Chiropractic Center, Inc. (a/a/o Deja Carroll) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 191b (Fla. Broward Cty. Ct. 2005).

If the Court were to disregard the untimeliness of the affidavit, the Court would still enter summary judgment in favor of the Plaintiff based on the fact that the affidavit was legally and factually insufficient to raise a disputed issue of material fact and for the reasons set forth on the record.

Accordingly, Plaintiff’s Motion for Summary Judgment is hereby GRANTED as to relatedness and medical necessity.

The Court finds that there are no triable issues remaining in this matter.

ORDERED AND ADJUDGED that Plaintiff, OPEN MRI OF BOCA, LLC (a/a/o Marie Cadet), does have and recover from Defendant, STATE FARM FIRE AND CASUALTY COMPANY, the sum of $527.26, plus prejudgment interest of $149.26 for a total sum of $676.52, which shall bear interest at the legal rate of 4.78%, 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.

__________________

¹See 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).

²Plaintiff’s request for admissions #7 asked Defendant “Admit that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were medically necessary. Plaintiff’s request for admissions #8 asked Defendant “Admit that the amount charged by the Plaintiff for the bill(s), which are the subject matter of this lawsuit, were reasonable.” Plaintiff’s request for admissions #9 asked Defendant “Admit that the Assignor was involved in an automobile accident on the date described in the Complaint and that the services rendered by the Plaintiff, which are the subject matter of this lawsuit, were related to the automobile accident described in Plaintiff’s complaint.”

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.”