25 Fla. L. Weekly Supp. 97a

Online Reference: FLWSUPP 2501PETIInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Insurer paid provider in conformity with Medicare Part B participating physician fee payment schedule, which was properly incorporated into policy — Fee schedule published by federal government on CMS website is not hearsay — Summary judgment in favor of insurer not precluded by outstanding discovery, assuming plaintiff acted diligently in obtaining discovery, where the outstanding discovery is not necessary to determination of issue before the court — Plaintiff’s motion to strike affidavit in support of motion for summary judgment is denied — Affidavit of insurer’s adjuster demonstrated adjuster’s personal knowledge of claim, and the information contained in affidavit is admissible — With respect to documents attached to affidavit, explanation of benefits and PIP medical detail list are hearsay, and defendant failed to lay predicate for admission of these documents under business records exception — Defendant’s motion for section 57.105 sanctions is denied

APPLE MEDICAL CENTER, LLC a/a/o Fausette Petit-Homme, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2014-8377-SP-25 01, Civil Division. October 18, 2016. Amended November 24, 2016. Laura A. Stuzin, Judde. Counsel: Narcy Fajardo, Progressive PIP House Counsel, Medley, for Plaintiff. Michael J. Feldman, Law Office of Michael J. Feldman, P.A., for Plaintiff.OMNIBUS ORDER

THIS CAUSE came before the Court upon Defendant Progressive Select Insurance Company’s (“Defendant”) Amended Motion for Summary Judgment and Motion for Sanctions Pursuant to F.S. 57.105, Plaintiff’s Motion to Strike Defendant’s Affidavits Filed in Support of Motion for Summary Judgment, Defendant’s Motion to Strike Plaintiff’s Notice of Filings Dated September 13, 2016 and for Sanctions, and Defendant’s Motion to Strike Affidavit of Michael Limond. After hearing extensive oral argument on September 20, 2016 and reviewing all documents filed by the parties and the authorities cited therein, the Court finds as follows:

I. PROCEDURAL HISTORY

Plaintiff filed this breach of contract action against Defendant in small claims court more than two (2) years ago on June 12, 2016. [Editor’s note: Dated modified to June 12, 2014. Order published below.] Approximately seven (7) months later, on January 12, 2015, Defendant filed its original Motion for Summary Judgment and Motion for Sanctions Pursuant to F.S. 57.105 and Memorandum of Law.¹ This motion remained pending for more than one (1) year before being set for hearing. On January 29, 2016, this Court scheduled the hearing on the original Motion for Summary Judgment to be heard on March 9, 2016. Thereafter, on February 3, 2016, this Court continued the hearing and rescheduled it to take place on April 25, 2016. More than fourteen (14) months after Defendant filed its original Motion for Summary Judgment, Plaintiff filed a Motion for Continuance, seeking to continue the April 25, 2016 hearing. This Court denied the Motion to Continue on April 3, 2016, finding that Plaintiff’s motion failed to explain how the pending discovery was relevant to issues raised in Defendant’s original Motion for Summary Judgment and why Plaintiff failed to obtain the discovery sooner. By this point in the proceedings, this small-claims lawsuit had been pending for twenty-one (21) months and the original Motion for Summary Judgment had been pending for fourteen (14) months.

Ultimately, the Court heard oral argument on Defendant’s original Motion for Summary Judgment on April 25, 2016. Plaintiff again renewed its Motion to Continue ore tenus at this hearing. For the same reasons discussed above, the Court denied Plaintiff’s Motion to Continue and proceeded with the summary judgment hearing. On June 23, 2016, this Court entered an Order denying Defendant’s Motion for Summary Judgment for the sole reason that Defendant did not file in the record a copy of the applicable insurance policy. In said Order, the Court allowed Defendant the opportunity to file an amended motion in which it attached a copy of the applicable insurance policy.

On June 29, 2016, Defendant filed an Amended Motion for Summary Judgment, which is the subject of this Order. Thereafter, on August 25, 2016, Plaintiff made another ore tenus motion to continue the hearing on Defendant’s now Amended Motion for Summary Judgment to obtain the same discovery. Plaintiff’s ore tenus argument at the August 25, 2016 hearing suffered from the same fatal flaws as the prior motions and was thus denied. After the hearing, Plaintiff again renewed the request to schedule a discovery hearing by way of its Notice of Filing dated August 25, 2016. On September 2, 2016, this Court issued an Order Denying Plaintiff’s Request to Schedule Discovery Hearing in Advance of Hearing on Defendant’s Amended Motion for Summary Judgment. This Order again explained that Plaintiff’s most recent request, along with all prior requests to continue the summary judgment hearing, failed to explain how the outstanding discovery is relevant to the summary judgment issue and why Plaintiff failed to obtain the discovery sooner. Also on this day, the Court entered an Order scheduling the hearing on Defendant’s Amended Motion for Summary Judgment on September 20, 2016.

Most recently, on September 13, 2016, Plaintiff filed a fifth Motion to Continue Defendant’s Motion for Final Summary Judgment Set by Court for September 20, 2016. On September 16, 2013, this Court, interpreting Plaintiff’s fifth motion as a Motion for Reconsideration of the Court’s September 2, 2016 Order, once again denied the requested continuance, finding that nothing had changed in the posture of the case that would warrant a continuance. Also, on September 13, 2016, Plaintiff filed a Motion to Strike Defendant’s Affidavits Filed in Support of Motion for Summary Judgment along with numerous Notices of Filing. One day later, Defendant filed a Motion to Strike Plaintiff’s Notice of Filings Dated September 13, 2016 and for Sanctions, and a Motion to Strike Affidavit of Michael Limond. On September 20, 2016, this Court heard more than one (1) hour of oral argument on the issues ruled upon in this Order.

II.

PLAINTIFF’S OBJECTION TO THE SUMMARY JUDGMENT HEARING

At the outset, the Court notes that, at the commencement of the summary judgment hearing on September 20, 2016, Plaintiff objected to it going forward because (1) Plaintiff claims that Defendant’s affirmative defenses did not give it proper notice of the defenses in this case and (2) Plaintiff claims it should be entitled to discovery on the method Progressive used to compute the payment of charges at issue. The Court hereby OVERRULES Plaintiff’s objections for the reasons explained below.

a. Plaintiff Had Ample Notice of Defendant’s Defense

Plaintiff first contends that Defendant’s Amended Motion for Summary Judgment cannot be heard because Defendant withdrew all affirmative defenses upon which the summary judgment was based and Plaintiff, therefore, had no notice of the issues on summary judgment to adequately prepare for them and conduct the necessary discovery. Defendant filed its Answer and Affirmative Defenses more than two (2) years ago on August 13, 2014 wherein Defendant raised twelve affirmative defenses. Among these was affirmative defense number 3, which stated: “Defendant has paid all benefits reasonably due under any contract of insurance and the Florida Motor Vehicle No-Fault Law. The dates of service submitted to the Defendant were paid in accordance with the Fee Schedule.” Four (4) months later, Defendant filed its original Motion for Summary Judgment on January 12, 2015 — more than one (1) year and nine (9) months before the hearing on Defendant’s Amended Motion for Summary Judgment. In that original Motion for Summary Judgment, Defendant explained that, in its view, the sole issue in this case is: “whether Progressive and its insured are entitled to limit reimbursement of the Plaintiff [sic] charges in accordance with the fee schedules identified in Progressive’s policy of insurance and in Fla. Stat. 627.736(5)(a)1(2013) thereby barring the Plaintiff from any additional recovery from Progressive and its insured in this matter.” Consistent with Defendant’s third affirmative defense, Defendant pursued its defense that it paid the benefits due in accordance with the policy of insurance, the Florida Motor Vehicle No-Fault Law (i.e. Fla. Stat. 627.736), and the fee schedule. In fact, the 21-page original Motion for Summary Judgment lays out Defendant’s entire theory of the case premised upon affirmative defense number 3.

This motion remained pending for more than one (1) year before it was set for hearing. Curiously, after the original Motion for Summary Judgment was set for hearing, Plaintiff filed a Motion for Leave to Ask Medicare Formula Interrogatories. In that motion, Plaintiff explained that, on March 27, 2016 (fourteen (14) months after the original Motion for Summary Judgment was filed), Plaintiff served Medicare Formula Interrogatories and “Plaintiff needs this information to prepare for the defendant’s motion for summary judgment set for April 25, 2016 and without it is severely prejudiced.” It is difficult to imagine a situation where Plaintiff was not on notice of Defendant’s defense and yet served discovery it believed was critical to the issues raised on summary judgment, seeking leave of court to receive the responses in advance of the hearing. By Plaintiff’s own admission, Plaintiff was aware of the Defendant’s defense and was taking steps to obtain discovery directly related to that defense.

Thereafter, on April 5, 2016, Defendant withdrew all affirmative defenses other than affirmative defense number 3, discussed above. On April 25, 2016, during the hearing on Defendant’s original Motion for Summary Judgment, Plaintiff did not claim to be prejudiced by the withdrawal of the affirmative defenses or confused by the only remaining affirmative defense. Indeed, Plaintiff did not raise this issue until many months later at the September 20, 2016 hearing without any explanation as to how it suddenly had no notice of Defendant’s affirmative defense five months after the original Motion for Summary Judgment was heard.

In either event, the Court finds that affirmative defense 3 provided Plaintiff ample notice of the summary judgment issues, especially when coupled with its 21-page Motion for Summary Judgment pending for one year and nine months by the time of the September 20, 2016 hearing. If Plaintiff believed that affirmative defense number 3 was vague, Plaintiff had the opportunity to file a Motion for More Definite Statement pursuant to Florida Rule of Civil Procedure 1.140(e). Upon the Court’s review of the docket, it appears that Plaintiff never filed such a motion.

In addition, the Court finds that Defendant’s argument in affirmative defense 3 is in reality a denial of Plaintiff’s breach of contract claim. Specifically, in the Complaint, Plaintiff sued Defendant for its alleged failure to pay a $600 charge under the applicable insurance policy, a charge which Plaintiff claims is a reasonable, necessary and related medical expense. See Complaint, ¶5. Defendant’s position is that it paid this medical expense in compliance with the terms and conditions set forth in the insurance contract. Defendant takes the position that it did not breach the insurance policy and it references the specific policy language supporting its purported compliance. Even if affirmative defense 3 were too vague to provide Plaintiff notice of the issue, Defendant did not have an obligation to plead endorsement A-85 as an affirmative defense because it amounts to a denial of the breach of contract claim.

b. Even if Plaintiff had Demonstrated Diligence In Obtaining The Requested Discovery, This Discovery Involving The Physician Payment Schedule Under Medicare Part B Is Not Needed To Determine The Summary Judgment Issue Presented Here

Plaintiff next objected to the summary judgment hearing because it claims there is outstanding discovery related to the issues raised on summary judgment. Prior to reaching the merits of this argument, the Court once again notes that Plaintiff has failed to present even a scintilla of evidence that the failure to obtain the discovery at issue was not the result of Plaintiff’s own inexcusable neglect. This case has been pending for more than two years. The original Motion for Summary Judgment, which raised the exact same legal issue as the Amended Motion for Summary Judgment, was filed one year (1) and nine (9) months ago. The original Motion for Summary Judgment was pending for more than one (1) year before it was even set for hearing. Yet, Plaintiff undertook no efforts to obtain the discovery it claims it so desperately needed until January 27, 2016 when it scheduled Defendant’s discovery objections for hearing. It is no coincidence that Plaintiff began to pursue its discovery at this time as the Court contemporaneously granted Defendant’s request for a hearing on its original Motion for Summary Judgment.

This fact pattern begs the question of whether Plaintiff dropped the ball up until the moment the original Motion for Summary Judgment was set for hearing. This is not a situation where Defendant raced to file a motion for summary judgment and set it for hearing shortly after suit was filed in an effort to shorten discovery. In fact, Defendant’s actions in this case could be viewed as quite laissez faire in scheduling the hearing on the original Motion for Summary Judgment. Despite this, Plaintiff took no action to secure the allegedly necessary discovery during the one (1) year that the original Motion for Summary Judgment was pending. At no point in time has Plaintiff ever proffered an explanation for the delayed discovery efforts. As a result, this Court is compelled to find that Plaintiff fell short of its burden for a continuance of the hearing. See 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] (finding that the non-moving party’s failure to act on discovery for six months and waiting until weeks before the summary judgment hearing to move to compel discovery showed the nonmoving party “failed to act diligently in seeking discovery” and “the trial court was entitled to believe that the real purpose of discovery was delay, rather than the discovery of relevant information”).

Assuming Plaintiff demonstrated diligence in obtaining the discovery at issue, Plaintiff would still not be entitled to a continuance given the legal question presented in the original and Amended Motion for Summary Judgment. Defendant’s position is that its A-85 Endorsement adopted the language of Florida Statute 627.736(5)(a)(1) and limited payment of medical benefits under the Florida Motor Vehicle No-Fault Statute to 80% of 200% of the allowable amount under the participating physician fee schedule of Medicare Part B.

According to federal law, the U.S. Secretary of the Department of Health and Human Services is required to establish, by federal regulation, “fee schedules that establish payment amounts for all physicians’ services furnished in all fee schedule areas. . . for the year.” See 42 U.S.C. §1395w-4(b)(1). This is the participating physician fee schedule of Medicare Part B upon which Defendant relies as the basis for its Amended Motion for Summary Judgment. The payment amount for each service will be determined based on (1) “the relative value for the service,” (2) “the conversion factor for the year,” and (3) “the geographic adjustment factor . . . for the service for the fee schedule area.” Id. The statute further defines how each of the three factors should be computed. Id. Critically, the statute contains an unambiguous and explicit “restriction on administrative and judicial review” of the computations made by the Secretary of the Department of Health and Human Services. See 42 U.S.C. §1395w-4(i)(emphasis added). It states:

There shall be no administrative or judicial review under section 1395ff of this title or otherwise of —

(A) the determination of the adjusted historical payment basis (as defined in subsection (a)(2)(D)(i) of this section),

(B) the determination of relative values and relative value units under subsection (c) of this section, including adjustments under subsections (c)(2)(F), (c)(2)(H), and (c)(2)(I) of this section and section 13515(b) of the Omnibus Budget Reconciliation Act of 1993,

(C) the determination of conversion factors under subsection (d) of this section, including without limitation a prospective redetermination of the sustainable growth rates for any or all previous fiscal years,

(D) the establishment of geographic adjustment factors under subsection (e) of this section,

(E) the establishment of the system for the coding of physicians’ services under this section, and

(F) the collection and use of information in the determination of relative values under subsection (c)(2)(M).

42 U.S.C. §1395w-4(i)(emphasis added).

This Court has endeavored to find cases within Florida’s state courts interpreting this provision, but found none. It, therefore, turns to opinions wherein federal courts were called upon to judicially review the Medicare Part B participating physician fee schedule and finds these persuasive. In Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996), the Tenth Circuit answered the question: “Does the ‘no-review’ provision of the Medicare Act, 42 U.S.C. § 1395w-4(i)(1)(C), bar judicial review of plaintiff’s claim?” Although there is a strong presumption of judicial review of administrative action, “this presumption may be overcome by ‘specific language or specific legislative history that is a reliable indicator of congressional intent or where congressional intent to preclude judicial review is ‘fairly discernible in the detail of the legislative scheme.’ ” Id. at 1356 (internal citations omitted). Answering the above question in the affirmative, the Tenth Circuit determined that “the language of the ‘no review’ provision clearly indicates Congress’ intent to preclude administrative and judicial review of the manner in which the conversion factor is calculated by the Secretary.” Id. (emphasis added). Further finding that the language of section 1395w-4(i) is mandatory, the appellate court concluded that “Congress simply intended to prevent judicial ‘second-guessing’ of a discretionary administrative decision that is based substantially upon economic projections and cost analyses.” Id. Similarly, the District Court of the District of Columbia concluded that section 1395w-4(i)(1) “could not be a more clear prohibition of judicial review” as demonstrated by the plain intent of Congress. American Society of Dermatology v. Shalala, 962 F. Supp. 141 (D.D.C. 1996). Holding that it lacked subject matter jurisdiction to consider a challenge to the determination of relative value units, the federal court noted “Congress plainly intended to give the Secretary the authority to develop and implement the RBRVS system without being subjected to judicial scrutiny.” Id. See also Fischer v. Berwick, M.D., 503 Fed. Appx. 210 (4th Cir. 2013)(finding that any claims seeking judicial review of the Secretary’s determination of relative value units are barred under section 1395w-4(i)(1)).

In an analogous case involving the Florida No-Fault Statute and a question regarding the reimbursement rate for an MRI under the Medicare Part B participating physician fee schedules, Judge Ursula Ungaro from the Southern District of Florida determined that the Medicare Part B payment schedule was “the proper schedule to use when calculating reimbursement payments for MRI services under Florida’s No-Fault Statute.” See All Family Clinic of Daytona Beach, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1297, 1299 (S.D. Fla. Feb. 11, 2010) [22 Fla. L. Weekly Fed. D352a]. Finding that the No-Fault statute “unambiguously identifies the participating physicians schedule as the appropriate schedule for determining MRI reimbursements,” Judge Ungaro noted that the U.S. Department of Health and Human Services, Centers of Medicare and Medicaid Services (“CMS”), is the federal agency in charge of administering the Medicare program. Id. at n.2. CMS, as the pertinent federal agency “annually updates and approves the physician schedule,” providing “the pricing amounts for any particular year, service, location, etc. . . at the CMS website: www.cms.hhs.gov/PFSlookup/.” Id.

Based on the foregoing, it becomes clear to the Court that it cannot review or otherwise second-guess the Secretary of the Department of Health and Human Services’ computation of the participating physician fee schedule under Medicare Part B. In fact, this Court has no jurisdiction to even entertain such a review. As noted in the State Farm case cited above, in the Florida No-Fault Statute, the Florida Legislature made specific reference to the participating physicians fee schedule under Medicare Part B for determining reimbursements under section 627.736(5)(a)(1). Thus, the Court and the parties are directed to review the participating physician fee schedule created pursuant to 42 U.S.C. § 1395w-4. This is the operative fee schedule to determine the appropriate reimbursement rate in this case. No amount of discovery between Plaintiff and Defendant will change the numbers in the fee schedule.² These are not subject to review or modification. As a result, Plaintiff’s argument that it requires additional time to complete discovery to determine how Defendant computed the reimbursement amount in this case is OVERRULLED.

III. PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIDAVIT FILED IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Plaintiff also moved to strike the affidavit of Christina Barrow, which was attached to Defendant’s Amended Motion for Summary Judgment. Plaintiff moved to strike the affidavit, including all documents attached thereto, because these are hearsay and do not fall within the business records exception. In order to rule on Plaintiff’s Motion, it is first necessary to distinguish between the affidavit and the documents attached to the affidavit. The Court first finds that the affidavit itself is admissible. The affiant, Christina Barrow, is a Litigation/Claim Specialist for Defendant. See Affidavit of Christina Barrow at ¶1. She is the claims adjuster assigned to this lawsuit and insurance claim. Id. at ¶2. She has been tasked with handling this particular claim and, therefore, has knowledge of this claim, including the amount Defendant paid for the service at issue, when it was paid, and how it was paid. Id. She is also the records custodian for this particular claim file and can attest to the authenticity of such documents. Id. Given that the information contained within Ms. Barrow’s affidavit is based on her personal knowledge of the claim, the information contained within her affidavit is admissible. Plaintiff’s Motion to Strike the Affidavit of Christina Barrow is DENIED.

The documents attached to her affidavit are a different issue. In order to analyze whether the attached documents are hearsay, it is critical to identify each of the documents. Exhibit A consists of the insurance policy that Plaintiff alleges the Defendant breached. Exhibit B is the Explanation of Benefits that Defendant provided for the subject service and Exhibit C is a PIP Medical Detail List. As a preliminary matter, the Court finds that Ms. Barrow, as the Records Custodian of the claims file, properly authenticated the documents when she indicated that these were true and correct copies.³ Id. at ¶3.

Next, the Court will determine whether Exhibits A, B, and C are hearsay. Exhibit A consists of the insurance policy at issue. An insurance policy is a contract — hence Plaintiff’s claim against Defendant for breach of contract. “Words of a contract, often characterized as verbal acts, are non hearsay because they have independent legal significance — the law attaches duties and liability to their utterance.” A.J. v. State, 677So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]. See also Deutsche Bank Nat’l Trust Co. v. Alaqua Property, 190 So. 3d 662 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D994b] (collecting cases)(holding that a promissory note, which is a contract, is not hearsay and not subject to the hearsay rule because its words have independent legal significance in that they “establish the existence of the contractual relationship and the rights and obligations of the parties regardless of the truth of any assertions made in the document.”). Given that an insurance policy is a contract and it has independent legal significance, the Court finds that Exhibit A was not hearsay. Defendant was not required to lay the predicate for the business records exception for Exhibit A as such an exception is only needed when a document is hearsay. Because the insurance policy is non-hearsay, it is admissible in support of Defendant’s Amended Motion for Summary Judgment. Plaintiff’s Motion to Strike is DENIED as to Exhibit A.

Exhibits B and C, on the other hand, are not admissible because they are hearsay and Defendant failed to lay the predicate for the business records exception. “The elements to prove that evidence is admissible under the business records exception are: (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Yisrael v. State, 993 So. 2d 952 (Fla. 2008) [33 Fla. L. Weekly S577a]. This predicate may be established by having the records custodian take the stand and testify under oath to the predicate requirements, by stipulating to the admissibility of the document as a business record, or by establishing the business records predicate through a certification or declaration that complies with section 90.803(6)(c) and 90.902(11) of the Florida Statutes. Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D173b]. The records custodian need only be well enough acquainted with the business activity to provide the testimony. Landmark American Ins. Co. v. Pin-Pon Corp., 155 So. 3d 432 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D191a]. An explanation of benefits is considered hearsay, requiring proof of the business records exception. See M.J.T. v. State, 927 So. 2d 1077 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1371c].

In this case, Exhibits B and C are hearsay and, absent a stipulation, require proof that they are a business record. Upon review of Ms. Barrow’s Affidavit, this Court finds that the Affidavit does not lay the necessary predicate to satisfy the business records exception. The Affidavit simply concludes that the records attached are kept in the regular course of business activity, but it does not satisfy the remainder of the elements to prove the business records exception. For this reason, Exhibits B and C are inadmissible hearsay. Plaintiff’s Motion to Strike Exhibits B and C is hereby GRANTED.

Although the Court has stricken Exhibits B and C, Ms. Barrow’s affidavit still contains the same substantive information about the payout at issue. Such information is properly in evidence as Ms. Barrow’s affidavit is based on her personal knowledge of the claim. As a result, the striking of Exhibits B and C does not impact the Court’s ultimate analysis of the issues.

IV. DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S NOTICES OF FILING DATED SEPTEMBER 13, 2016 AND FOR SANTIONS

Defendant also filed a Motion to Strike Plaintiff’s Notices of Filing Dated September 13, 2016 and for Sanctions. On September 13, 2016, Plaintiff filed a variety of orders, motions for summary judgment, and affidavits filed in other lawsuits not pending before this Court. “Although a trial court may take judicial notice of court records . . . it does not follow that this provision permits the wholesale admission of hearsay statements contained within those court records.” Holt v. Calchas LLC, 155 So. 3d 499 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D296a], quoting Burgess v. State, 831 So. 2d 137, 141 (Fla. 2002) [27 Fla. L. Weekly S859a]. Florida’s appellate courts “have never held that such otherwise inadmissible documents are automatically admissible just because they were included in a judicially noticed court file. To the contrary, . . . documents contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere.” Id. As a result, the rules of evidence, including hearsay rules, apply to all information contained within a court file. Id.

Defendant first contends that these documents are not authenticated records. The Court disagrees as the Court file reflects that Plaintiff filed properly certified, stamped copies, which authenticates these documents. The analysis does not end there. To the extent that Plaintiff filed affidavits from other lawsuits, these are hearsay and are not admissible for summary judgment purposes. To the extent Plaintiff filed motions for summary judgment and orders issued by other county court judges, the Court takes judicial notice of the fact that these motions and orders were indeed filed in Miami-Dade County. This Court, however, is not bound by orders entered by fellow county court judges. In this instance, this Court does not find the orders persuasive on this issue and this Court respectfully declines to follow them.⁴

V.

DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT

a. Standard of Review

On a motion for summary judgment, the moving party must prove the absence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). The moving party’s proof must overcome all reasonable inferences drawn in favor of the opposing party. Id. The non-moving party will only be required to prove that issues of material fact exist once the moving party has satisfied its burden. Id.

b. The Insurance Policy Incorporates The Participating Physician Payment Schedule Under Medicare Part B

i. Defendant Presented the Applicable Insurance Policy

In support of its Amended Motion for Summary Judgment, as discussed above, Defendant provided the Affidavit of Christina Barrow. In the Affidavit, Ms. Barrow attached a copy of the insurance policy the Defendant issued to Masseau Petit-Homme for the policy period from August 18, 2013 until February 18, 2014, which covered the date of the subject loss on February 9, 2014. Specifically, the Affidavit attached a Declarations Page stating the policy contract is form 9610D FL (10/05) as modified by forms A085 FL (05/12) and Z357 (10/10). The Affidavit attests that this is a true and accurate copy of the insurance policy that applies to the insured in this case. As the moving party, Defendant had the initial burden to prove the absence of any genuine issue of material fact. When Defendant presented the Affidavit of Ms. Barrow, the records custodian of the insurance policy, in which she attested that Exhibit A was a true and correct copy of the applicable insurance policy, Defendant satisfied that initial burden. The Court notes that the top of Exhibit A states across the top in bold letters “9610D FL (10/05).”

Notwithstanding the foregoing, Plaintiff takes issue with the fact that the policy attached to the Affidavit contains the words “Version 2.0” in the bottom left hand corner. As a result of those words, Plaintiff claims this is not the operative insurance policy. The Court finds that this is nothing more than speculation on Plaintiff’s part. Once the moving party satisfies its burden, the burden then shifts to the non-moving party to present evidence by way of deposition testimony, affidavit or answers to interrogatories that creates a genuine issue of material fact. Here, once Defendant satisfied its burden by authenticating a copy of the insurance policy, the burden then shifted to Plaintiff to present evidence creating an issue of fact about the authenticity of the policy. Plaintiff did nothing of the sort.

Rather than present an affidavit of the insured or deposition testimony of Ms. Barrow or some other agent of the Defendant calling into question the attached policy’s authenticity, Plaintiff presented nothing more than its counsel’s unsubstantiated argument that the words “Version 2.0” somehow made the insurance policy less than authentic. The Court notes that Plaintiff had almost two months from the time that Ms. Barrow’s Affidavit and the subject insurance policy were filed until the time the Court heard oral argument on the Amended Motion for Summary Judgment. During this time, Plaintiff had every right to schedule the deposition of Ms. Barrow to challenge the authenticity of the insurance policy attached to the Amended Motion for Summary Judgment. A review of the docket reflects that Plaintiff did not notice the deposition of Ms. Barrow and did not move to compel her deposition either.⁵ As a result, Plaintiff did not present the Court with any evidence — as opposed to sheer speculation — that the insurance policy attached as Exhibit A to the Affidavit was not a true and accurate copy of the applicable policy. It, therefore, remains undisputed that Exhibit A is a true and accurate copy of the applicable insurance policy.

ii. The A-85 Endorsement Properly Incorporates the Participating Physician Fee Payment Schedule Under Medicare Part B

The Court finds that the A-85 Endorsement properly incorporates the fee schedules stated in Fla. Stat. § 627.736(5)(a). It clearly, unambiguously and specifically adopts the statutory language and informs the insured that reimbursement will be limited to 80% of the schedule of maximum charges enumerated in Fla. Stat. § 627.736(5)(a). GEICO v. Virtual Imaging Services Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]; Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So. 3d 63, 64 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant put all interested parties on actual notice of its intention to utilize the fee schedules as set forth in its policy and the Florida No-Fault Statute.

The Court gives effect to the plain meaning of statutes. It is “axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. See also State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) [27 Fla. L. Weekly S860a] (“[T]he Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of the statute meaningless.”).

The applicable Florida Motor Vehicle No-Fault Law states as follows:

1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:

***

f. For all other medical services, supplies and care, 200 percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare Part B. . .

Fla. Stat. 627.736(5)(a)(1)(f)(I)(2013).

Defendant’s A-85 Endorsement specifically states:

We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in section 627.736(5)(a)(1)(a through f) of the Florida Motor Vehicle No-Fault Law, as amended. Pursuant to Florida law, we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:

***

f. for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. . .

There is no question that Defendant incorporated the permissive fee schedule outlined in the Florida No-Fault Law, and clearly and unambiguously elected to pay in accordance with same. As a result, under the insurance policy, Defendant was entitled to reimburse Plaintiff at 80% of 200% of the allowable amount under the participating physicians fee schedule under Medicare Part B. The only question that remains is whether Defendant indeed paid in accordance with the fee schedule.

c. Defendant Paid Plaintiff In Conformity With The Participating Physician Fee Payment Schedule Under Medicare Part B

In its Amended Motion for Summary Judgment and the Affidavit of Christina Barrow, Defendant presents evidence that it paid in conformity with the participating physician fee schedule by allowing $452.32 and paying $361.68 for CPT code 99205 for the date of service March 15, 2014. See Affidavit of Christina Barrow, ¶7. This amount represents 80% of 200% of the Medicare Part B participating physician fee schedule for the year the service was rendered and in the locality of Miami-Dade County. Id.

Plaintiff takes issue with Defendant’s reliance on the reimbursement amount, which Defendant obtained from the CMS webpage, arguing this is hearsay. When Congress originally exacted 42 U.S.C. §1395w-4 in 1991, the Secretary of the Department of Health and Human Services was expected to update the fee schedule and publish this by way of a federal regulation. See 42 U.S.C. § 1395w-4. Effective January 1, 2012, the Department of Health and Human Services, through CMS, stopped publishing the fee schedules in the federal register. See Federal Register, Vol. 76, No. 228, Part II, P. 73,033 (Nov. 28, 2011)(“In the past, the Addenda referred to throughout the preamble of our annual PFS proposed and final rules with comment period were included in the printed Federal Register. However, beginning with the CY 2012 PFS proposed rule, the PFS Addenda no longer appear in the Federal Register. Instead these Addenda to the annual proposed and final rules with comment period will be available only through the Internet. The PFS Addenda along with other supporting documents and tables referenced in this final rule with comment period are available through the Internet on the CMS Web site at http://www.cms.gov/PhysicianFeeSched/.”) In fact, all addenda to the federal regulations, including those pertaining to relative value units and geographic adjustment factors for each individual year, are now only available on the CMS website. Id. at P. 73,469. In the State Farm decision, supra, Judge Ungaro took note that CMS, as the pertinent federal agency “annually updates and approves the physician schedule,” providing “the pricing amounts for any particular year, service, location, etc. . . at the CMS website: www.cms.hhs.gov/PFSlookup/.” See State Farm, 685 F. Supp. 2d at 1299, n.2.

By choosing to publish the participating physician fee payment schedule on the CMS website, this federal agency has transitioned into the 21st Century and is publishing the fee payment schedule on the Internet rather than in a book. The format by which this federal agency chooses to publish the fee payment schedule does not transform the information into hearsay. While the method to convey the information may be different, the import of the information is the same. The CMS website is simply the means by which the federal government and general public are able to access the updated participating physician fee payment schedule under Medicare Part B, much like one would resort to the federal register prior to the year 2012. For these reasons, this Court determines that the fee schedule published by the federal government on the CMS website is not hearsay.

At the September 20, 2016 hearing, Plaintiff cited to G.M.H. v. State, 18 So. 3d 728 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D2071c] to argue that information found on the Internet is inadmissible hearsay. This case is entirely distinguishable. In G.M.H., the victim at a restitution hearing submitted evidence of repairs to her vehicle based on research done on unknown Internet websites. Id. Here, Defendant obtained the reimbursement amount for the Medicare Part B participating physician fee payment schedule from the only place where the federal government publishes the information — the CMS website. This is not a situation where Defendant performed a search on Google to determine the reimbursement rate or consulted various non-governmental websites and then plugged that number into an affidavit. Defendant presented undisputed evidence of the reimbursement amount for the services Plaintiff provided to the insured on the applicable date of service as published in the applicable fee schedule established by CMS, a division of the Department of Health and Human Services.

Although Plaintiff presented the Affidavit of Michael Limond to rebut this number, Mr. Limond’s Affidavit is only based on his personal experience as a billing supervisor and administrator at Apple Medical Center. See Affidavit of Michael Limond, ¶2. Mr. Limond’s personal experience at Apple Medical Center is not relevant to the issues presented on Defendant’s Amended Motion for Summary Judgment. As explained above, courts and by implication juries have no right to judicially review and second-guess the reimbursement rates for the participating physician fee schedule under Medicare Part B as determined by the Secretary of the Department of Health and Human Services. The applicable reimbursement rate has already been determined and has been set in stone by the federal government. By presenting the Affidavit of Mr. Limond, Plaintiff attempts to obtain a judicial review of the federal fee schedule — something this Court lacks the power to do. As a result, Mr. Limond’s personal experience is not relevant to the question of the appropriate reimbursement rate under this scenario and the Court cannot consider Mr. Limond’s Affidavit.⁶

Given the undisputed evidence that Defendant reimbursed Plaintiff for the March 15, 2014 date of service in compliance with the participating physician fee schedule under Medicare Part B, this Court finds that Defendant is entitled to summary judgment as a matter of law. For the foregoing reasons, Defendant’s Amended Motion for Summary Judgment is hereby GRANTED. Plaintiff’s claim is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day.

VI. DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO F.S. 57.105

Although this Court has granted Defendant’s Motion for Summary Judgment, this Court declines to award sanctions pursuant to section 57.105 of the Florida Statutes. No evidence has been presented to establish that Plaintiff knew or should have known that its claim was not supported by the material facts necessary to establish the claim or that its claim would not be supported by the application of then-existing law to those material facts. As demonstrated by the lengthy legal analysis in this Order, this was not a simple legal issue. There were many nuances presented with this issue and the Court cannot fault Plaintiff for maintaining its position in this litigation. For these reasons, Defendant’s Motion for Sanctions Pursuant to F.S. 57.105 is hereby DENIED.

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¹It must be noted that Defendant’s original Motion for Summary Judgment is nearly identical to the Amended Motion for Summary Judgment at issue now, with the exception that the more recent motion attaches a copy of the complete insurance policy.

²The Court notes that, at the April 25, 2016 hearing, Plaintiff took issue with Defendant’s Verified Answers to Fee Schedule Interrogatories, specifically Interrogatory Number 3. Plaintiff claims that Interrogatory Number 3 asks Defendant to set forth the amount it alleges if due and how it calculated that amount. Plaintiff claims that Defendant’s reference to the CMS webpage on the Internet is insufficient. Based on the Court’s analysis above, the Court finds that Defendant’s Verified Answer to Fee Schedule Interrogatory Number 3 is compliant with federal law, rendering this issue moot.

³The authenticity of the insurance policy is further discussed in Section V(b) below.

⁴Plaintiff also filed a one-page excerpt from a much longer transcript involving a hearing before County Court Judge Cannava. This one-page excerpt suggests that, in direct response to Judge Cannava’s question, Defendant stated that it would be amending its responses to certain discovery in cases pending only before Judge Cannava. Defendant’s agreement to amend discovery responses in cases that are not pending before this Court has no bearing on this lawsuit. The facts in the instant case are entirely distinguishable as Defendant never agreed to amend its answers. This Court has the ability to make its own discovery rulings.

⁵Although this Court determined that Plaintiff was not entitled to further continue the hearing on the original and Amended Motions for Summary Judgment to obtain further written discovery on the Medicare Formula Interrogatories, this Court never stayed discovery or otherwise ruled that Plaintiff was disallowed from taking the deposition of Ms. Barrow. In fact, Plaintiff never once raised this issue with the Court.

⁶Defendant also raised a Daubert challenge to Mr. Limond’s opinions. Given the lack of relevance of Mr. Limond’s Affidavit on the issue of the appropriate reimbursement rate under the Medicare Part B participating physician fee schedule, this Court need not decide the Daubert challenge.

__________________FINAL ORDER ON DEFENDANT’S MOTION TO ALTEROR AMEND FINAL JUDGMENT PURSUANTTO FLA. R. CIV. P. 1.530(G)

THIS CAUSE having come upon Defendant’s Motion to Alter or Amend Final Judgment which was filed on October 26, 2016 and pursuant to Fla. R. Civ. P. 1.530(G), and the Court having reviewed said Motion and the Court Record and File, and being otherwise advised in the premises, it is hereupon,

ORDERED AND ADJUDGED that said Motion be, and the same is hereby GRANTED. The Omnibus Order rendering Final Judgment is amended to reflect the filing date of the lawsuit as June 12, 2014. The decree in Omnibus Order rendering Final Judgment is amended to include a reservation of jurisdiction to determine Defendant’s entitlement and amount to attorney’s fees and costs.