24 Fla. L. Weekly Supp. 787a
Online Reference: FLWSUPP 2410SANCInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — In granting motion for summary judgment in favor of medical provider, trial court erred in considering affidavits that contained conclusions relying on hearsay without conducting Daubert hearing to determine if affiants were expert witnesses who could properly render opinions — Further, reasonableness of charges is factual issue for jury, and trial court should act with caution in granting motion for summary judgment on issue
STATE FARM MUTUAL INSURANCE CO., Appellant, v. SUNSET CHIROPRACTIC & WELLNESS a/a/o Alexander Sanchez and Mayda Martinez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 14-351 AP; 14-352 AP. L.T. Case No. 2011-007914 CC 26. January 24, 2017. An appeal from a decision by the County Court in and for Miami-Dade County, Florida, Lawrence D. King, Judge. Counsel: Nancy W. Gregoire, for Appellant. Luis N. Perez, Stuart L. Koenigsberg, and Zachary McWilliams, for Appellee.
(Before TRAWICK, EIG, and HERSCH, JJ.)
(TRAWICK, J.) In November 2011, Appellee (Sunset Chiropractic & Wellness a/a/o Alexander Sanchez and Mayda Martinez), as assignee of two State Farm insureds, filed suit against Appellee (State Farm Mutual Automobile Insurance Co.) and alleged that it violated the PIP statute and breached the insureds’ policies by failure to pay the full amount of personal injury protection benefits charged by appellee for the insureds’ chiropractic treatments. Appellant denied any obligation to pay beyond the amounts it had already paid. Thus the reasonableness of the appellee’s charges was at issue.
In March 2014, Appellee filed two motions for final summary judgment, supporting them with the affidavits of Rodolfo Alfonso, D.C., the provider clinic’s owner and individual who prescribed the insureds’ treatment. In opposition to the Alfonso affidavits, the appellant filed the affidavits of Mr. Darrell Spell, FSA, MAAA. In entering final summary judgment on both motions in favor of Appellee, the trial court found that the Spell affidavits were based on Spell’s opinions utilizing the Medicare Part B Fee Schedule for payment of Appellant’s charges. The Court concluded that under Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (Virtual Imaging) unless Appellee’s policy expressly advised the insured that it intended to utilize the Medicare Part B Fee Schedule in this manner, they were prohibited from relying on the Fee Schedule. The court rejected State Farm’s argument that the Medicare Part B Fee Schedule was allowed to be considered under Virtual Imaging as a component that could be included in the reasonableness inquiry pursuant to §627.736(5)(a)1, Fla. Stat. The trial court further concluded that the reasonableness of the provider’s bills could be determined as a matter of law relying solely on the Alfonso affidavits submitted by Appellee.
Both the Spell and Alfonso affidavits contained a number of conclusions relying upon hearsay. However, the trial court never determined that either Spell or Alfonso was an expert witness who properly could render such opinions. Thus the court should have conducted a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) to determine whether the opinions contained in these affidavits were admissible.1
Additionally we note that a question of reasonableness of charges is generally a factual issue ripe for determination by a jury. See E.W. Karate Assn., Inc. v. Riquelme, 638 So.2d 604 (Fla. 4th DCA 1994) (when a party produces evidence as to billing, the reasonableness of the bills is a jury question).2 The trial court should act with caution in granting a motion for summary judgment under such circumstances. Further, in granting summary judgment, the trial court relied solely upon the Alfonso affidavit. However, an affidavit supporting a motion for summary judgment should not be based on factual conclusions or conclusions of law. Fla Orthopedics, Inc. v. American Ins. Co., 896 So. 1, 5 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1819a]; Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So.2d 174 (Fla. 3d DCA 1971).
REVERSED and REMANDED. (HERSCH, J. concurs. EIG, J., dissents with written opinion.)
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1The use of an affidavit submitted by a party who is a lay witness and which provides self-serving conclusory statements is even more concerning. See Heitmeyer v. Sasser, 664 So.2d 358, 359-60 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] and Verchick v. Hecht Investments, Ltd., 924 So.2d 944, 946 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D977a]
2While E. W. Karate involves the reasonableness of billing evidence at trial, the principle is equally applicable to the consideration of a motion for summary judgment.
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(EIG, J., dissenting.) One purpose of the Florida Motor Vehicle No-Fault statute is to reduce litigation. Requiring Daubert hearings and jury trials would thwart that statutory purpose.
