25 Fla. L. Weekly Supp. 1031a
Online Reference: FLWSUPP 2512ZALDInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will pay 80% of medically necessary expenses does not elect to limit reimbursement to statutory fee schedules — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit merely parrots statutory factors for determining whether charges are reasonable, is not supported by cognizable facts, sets forth conclusory opinion on reasonableness issue and excludes from consideration any charges above 200% of Medicare fee schedule — Where parties to this action previously litigated reasonableness of provider’s charges for same CPT codes to final judgment, doctrine of collateral estoppel precludes insurer from re-litigating reasonableness of charges
DOCTOR REHAB CENTER, INC., a/a/o Dainier Zaldivar, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-01984 SP 26. February 21, 2018. Lawrence D. King, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Paula E. Ferris, House Counsel for UAIC, Miami Gardens, for Defendant.
AFFIRMED; FLWSUPP 2804ZALD
ORDER GRANTING PLAINTIFF’S MOTION FORENTRY OF FINAL JUDGMENT ANDFINAL JUDGMENT IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court on 02/02/18 on Plaintiff’s Motion for Entry of Final Judgment as well as Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Entry of Final Judgment pertaining to the doctrine of Collateral Estoppel and/or Issue Preclusion.
The parties were represented by counsel at the hearing who presented arguments to this Court. Paula Elkea Ferris, Esq. appeared on behalf of the Defendant, and Majid Vossoughi, Esq. appeared on behalf of the Plaintiff.
The Court having reviewed Plaintiff’s Motion for Entry of Final Judgment with supporting evidence, Defendant’s affidavit in opposition, the entire Court file, Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Entry of Final Judgment pertaining to the doctrine of Collateral Estoppel and/or Issue Preclusion, the relevant legal authorities, and having heard argument from counsel and being otherwise sufficiently advised in the premises, hereby makes the following factual findings and conclusions of law, and enters this Order GRANTING Plaintiff’s Motion for Entry of Final Judgment and Final Judgment in Favor of Plaintiff.
Background & Factual Findings
Dainier Zaldivar was involved in an automobile accident on September 10, 2009 and treated with Plaintiff from December 16, 2009 through April 16, 2010 in relation to injuries sustained in said accident.
Plaintiff, as assignee of a policy of insurance issued by Defendant, submitted its bills in the amount of $11,500.00 for treatment of Dainier Zaldivar to Defendant for payment of Personal Injury Protection (“PIP”) benefits.
Defendant processed Plaintiff’s claim and paid PIP benefits to Plaintiff totaling $5,968.90. A total of $5,899.97 was paid by Defendant to Plaintiff prior to filing of the instant lawsuit and $68.93 was paid by Defendant pursuant to a confession subsequent to filing of the instant lawsuit.
Defendant’s Answer and Affirmative Defenses,1 its responses to Plaintiff’s Request for Admission # 11 and 12,2 Defendant’s correspondence and confession of judgment of 04/29/11,3 as well as statutory mandated Explanations of Review4 establish that Defendant made payment on Plaintiff’s claim pursuant to the fee schedule methodology or payment limitation contained in Fla. Stat. 627.736(5)(a)2.
The Court has reviewed Defendant’s policy of insurance and same does not contain any notice of an election to utilize the “optional” fee schedule methodology set forth in Fla. Stat. 627.736(5)(a)2. as its basis for determining the reasonableness and reimbursement of medically necessary treatment. As more fully set forth below, this payment methodology, if elected and incorporated, otherwise allows payments exclusively based on Medicare Fee Schedules without regard to “reasonableness” of a provider’s charge.
On 09/29/15 Defendant filed with this Court its Notice of Filing a Stipulation on the Issue of Relatedness and Necessity and same provides that “Defendant hereby stipulate and concede on the issues of relatedness and necessity.” As such, the record before this Court is undisputed that the services rendered by Plaintiff were medically necessary expenses and related to an accident as alleged by the Plaintiff.
The sole remaining issue in this case is whether the charges for treatment rendered by Plaintiff to Dainier Zaldivar was reasonable in price.
As to the sole remaining issue before this Court, the Plaintiff has alleged and argued that its charges are reasonable and ought to have been paid at 80% (Complaint, ¶ 23), that Defendant has improperly limited reimbursements (Complaint, ¶¶ 24, 28), and that Defendant’s failure to pay 80% of Plaintiff’s charges constitutes a breach of Defendant’s contractual obligations (Complaint, ¶¶ 29, 30).
On 06/30/17, Plaintiff filed an affidavit from Craig Dempsey, Plaintiff’s Records Custodian and designated Corporate Representative with respect to the issues of patient billing and charges.
On 07/17/17, Plaintiff filed its Motion for Entry of Final Judgment relying on affidavit testimony of Mr. Dempsey. This motion seeks final judgment in favor of Plaintiff and against Defendant in the amount of $2,431.10 plus Interest.
On 10/21/17 Plaintiff filed its Memorandum of Law in Support of Plaintiff’s Motion for Entry of Final Judgment pertaining to the doctrine of Collateral Estoppel and/or Issue Preclusion. This memorandum concerns this Court’s prior adjudication of reasonableness of Plaintiff’s charges in the case of Doctor Rehab Center, Inc., a/a/o Julian Grillo v. United Automobile Insurance Company, Case No. 11-01877 SP 26 (04).
More specifically, Plaintiff’s supplemental memorandum reflects that this Court has previously adjudicated through final judgment an identical issue between the same parties to this action pertaining to reasonableness of Plaintiff’s charges for the following eleven (11) treatment, modalities, and/or CPT codes that are also at issue in this case: 99203, 99213, G0283, 97035, 97010, 98940, 97124, 97012, 97140, 97530, and 97112.
Plaintiff argues that the doctrine of Collateral Estoppel and/or Issue Preclusion precludes Defendant from re-litigating the identical issue of reasonableness of Plaintiff’s charges for these eleven (11) treatment, modalities, and/or CPT codes previously litigated through final judgment between the same parties.
In opposition to Plaintiff’s Motion for Entry of Final Judgment Defendant has filed an affidavit from its employee and adjuster, Denorah Lang.
Summary Judgment Standard
Florida Rule of Civil Procedure 1.510 provides that “[t]he judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Volusia County v. Aberdeen At Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a] (citing Mendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a].
The Plaintiff’s burden of proof in establishing its prima facie case to recover PIP benefits requires proof that the plaintiff’s medical services are related to the subject accident, medically necessary and that the bills for said services are reasonable. See Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].Reasonableness of Plaintiff’s Charges
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]; State Farm Mutual Automobile Insurance Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court 2004) (appellate capacity).
Affidavit of Craig Dempsey
As to reasonableness of Plaintiff’s charges, Plaintiff provided affidavit testimony from Craig Dempsey, Plaintiff’s Records Custodian and designated Corporate Representative with respect to the issues of patient billing and charges.
Mr. Dempsey’s affidavit reflects that he has been in the medical billing field since 1979, operated two billing companies, was responsible for preparing the medical bills in this case, and is familiar with the range of usual and customary charges for chiropractic treatment and what other medical providers charge in Miami-Dade County. He has been qualified to render an opinion as to reasonableness of a medical providers’ charges on several occasions, including numerous cases before this Court. See New Medical Group, Inc. a/a/o Elsa Collazo v. United Auto. Ins. Co., Case. No. 11-1871 SP 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Rose Corsetti v. United Auto. Ins. Co., Case. No. 11-1875 SP 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Gledys Herrera v. United Auto. Ins. Co., Case. No. 11-1870 SP 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Luis Montoya v. United Auto. Ins. Co., Case. No. 11-1491 CC 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Nancy Rodriguez v. United Auto. Ins. Co., Case. No. 11-1874 SP 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Jamileth Solorzano v. United Auto. Ins. Co., Case. No. 11-1492 CC 26 (04) (April 2015) (King, J.); New Medical Group, Inc. a/a/o Leonel Valdez v. United Auto. Ins. Co., Case. No. 11-1873 SP 26 (04) (April 2015) (King, J.); Rivero Diainostic Center, Inc., a/a/o Ihosvany Coca v. United Auto. Ins. Co., Case. No. 10-2933 SP 26 (04) (April 2016) (King, J); and Doctor Rehab Center, Inc. a/a/o Juliet Fernandez v. United Auto. Ins. Co., Case. No. 11-1980 SP 26 (04) (March 2017) (King, J.).
Mr. Dempsey’s affidavit outlines his methodology which involves comparing Plaintiff’s charges to the range of charges of other medical providers in the community. Mr. Dempsey’s methodology has gained acceptance by the American Medical Association which has adopted this method in their policy statement H-385.923 in defining “Usual, Customary, and Reasonable” (UCR) charges. Mr. Dempsey testifies that the charges for treatment rendered by the Plaintiff are reasonable charges within the range of usual and customary charges for similar care in the Miami-Dade County geographical area. A copy of the medical bills submitted to Defendant reflecting the treatment rendered to Dainier Zaldivar from 12/16/09 through 04/16/10 are attached to Mr. Dempsey’s affidavit. His affidavit outlines the data utilized in formulating his opinion, a copy of which was produced to Defendant along with his affidavit.
Mr. Dempsey further testifies that he has personal knowledge regarding usual and customary charges and payments accepted by the Plaintiff and that the amount billed by the Plaintiff represents its usual and customary charges for services rendered. He testifies that Plaintiff accepted as its usual and customary payment from no-fault insurers eighty percent of the amounts billed on policies that did not contain medical payments coverage and one hundred percent of the amounts billed on policies containing medical payments coverage. He further testifies that during the relevant time periods at issue Plaintiff was not a Medicare or Medicaid provider, was not a Worker’s Compensation provider, was not a participant in any HMO or PPO managed care plans, and primarily treated patients involved in automobile accident and billed PIP insurance carriers under Florida’s No-Fault act.
In the present case, Plaintiff has met its prima facie burden to establish that its charges are reasonable. United Auto. Ins. Co. v. Hallandale Open MRI, LLC. a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. App. December 11, 2013); Cert. Den., 145 So.3d 997 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1883c] (medical provider establishes a prima facie case that its bills are reasonable by offering testimony through a qualified witness that its prices are based on years of personal experience, consideration of fee and coding reference books, and the usual and customary charges of other medical providers in the community for the same procedure codes); Roberto Rivera-Morales, M.D., a/a/o Fabian A. Mejia-Quinteros v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 271b (Fla. 11th Circuit, Miami-Dade County, Judge King, June 19, 2014) [testimony that charges are within the range of usual and customary charges in the community in which Plaintiff operates and are indicative of amounts accepted from other insurers satisfies Plaintiff’s burden of production citing to State Farm Mutual Automobile Insurance Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court 2004) (appellate capacity)].
Defendant’s Burden of Proof
Once Plaintiff has established a prima facie case that its charges are reasonable, the Defendant must come forward with counterevidence sufficient to create a genuine issue of material fact. Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979).Evidence Offered by DefendantAffidavit of Denorah Lang
Much of the affidavit of Denorah Lang sets forth her background and experience as an insurance adjuster (see e.g., ¶¶ 1 through 6, ¶7, ¶11, portions of ¶12, ¶13, ¶14, and ¶15), while in other portions she parrots the general factors set forth in subsection (5)(a)1. of the PIP statute (see e.g., ¶¶ 7, 8, 14) or delineate the amounts billed by Plaintiff for various modalities (¶ 9).
In her affidavit Ms. Lang formulates a conclusory opinion that the amounts billed by Plaintiff “are not reasonable and are above what is reasonable in this community” (¶ 10), and that she has determined that Plaintiff’s charges “are not reasonable in price” or “unreasonable.” (¶ 14). However, Ms. Lang fails to delineate the amount(s) she would otherwise consider to be a reasonable charge or range of reasonable charge(s) for various treatment, modalities, and/or services rendered by the Plaintiff.
In ¶ 12 of her Affidavit Ms. Lang purports to set forth a legal opinion regarding the sufficiency of Plaintiff’s record evidence, in addition to a hearsay allegation premised on speculation and conjecture that Plaintiff “receive[s] and accept[s] reimbursement amounts far less than the amount billed in this case.” This portion of Ms. Lang’s affidavit appears to be premised on Defendant’s unilateral tender of amounts less than 80% of Plaintiff’s billed amount wherein she conflates cashing of a draft for less than 80% of billed amount with “accepting” the incorrectly tendered reimbursement amount.
In ¶ 13 of her Affidavit Ms. Lang claims to have taken into consideration “reimbursements from other PIP insurers, cash patients, Medicare and Medicaid” without any specificity as to amounts or the identity of these other PIP insurers who may or may not have endorsed their policies to provide for “fee schedule” payments. Further, Ms. Lang appears to have also taken into consideration what other PIP providers, as opposed to Plaintiff, may have been paid and accepted “at much lower amounts than what was charged [by the Plaintiff] .”
PIP Payment Methodology Options
The 2008 amendments to Fla. Stat. 627.736 created two separate and distinct PIP payment methodology options.
The default method, known as the “fact dependent” or “reasonableness” method, is set forth in Fla. Stat. 627.736(5)(a)1. and requires PIP insurers to pay for medical expenses based upon a fact intensive analysis of various “reasonableness” factors.
The second “optional” method is the “Medicare Fee Schedule” method set forth in Fla. Stat. 627.736(5)a.2. allowing PIP insurers to pay for medical services based exclusively on Medicare Fee Schedules without regard to the “reasonableness” of a provider’s charge.
In July 2013, the Florida Supreme Court in Geico General Insurance Company v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] accepted from the Florida Third District Court of Appeal a certified question of great public importance which it rephrased as follows:
“WITH RESPECT TO PIP POLICIES ISSUED AFTER JANUARY 1, 2008, MAY AN INSURER LIMIT REIMBURSEMENTS BASED ON THE MEDICARE FEE SCHEDULES IDENTIFIED IN SECTION 627.736(5)(a), FLORIDA STATUTES, WITHOUT PROVIDING NOTICE IN ITS POLICY OF AN ELECTION TO USE THE MEDICARE FEE SCHEDULES AS THE BASIS FOR CALCULATING REIMBURSEMENTS?”
In answering the question in the negative, the Court held:
“Accordingly, we conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.”
The Supreme Court in Virtual Imaging made clear that a policy “election” providing notice to insureds of its intent to limit reimbursement of no-fault benefits under the Medicare Fee Schedules was required “before” an insurer could “take advantage” of the Medicare Fee Schedule methodology.
The Supreme Court changed the certified question to include the phrase “as the basis” for calculating reimbursement, intentionally broadening the scope of its holding to preclude the use of the Medicare Fee schedules contained in section 627.736(5)(a)2. “as the basis” for determining payment of no-fault expenses unless the policy of insurance expressly contained notice of the intent to utilize same. See also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (The plain language of section 627.736 “allows an insurer to choose between two different payment calculation methodology options” and “anticipates that an insurer will make a choice”).
The Eleventh Judicial Circuit Court, in its appellate capacity, in Virtual Imaging Servs., Inc. a/a/o Jacqueline Perez v. United Auto. Ins. Co., 23 Fla. L. Weekly Supp. 304a (Fla. 11th Cir. App. 2015) and Virtual Imaging Servs., Inc. a/a/o Soyara Cedeno v. United Auto. Ins. Co., 23 Fla. L. Weekly Supp. 516a (Fla. 11th Cir. App. 2015), acknowledged that insurers were required under the no-fault act to “clearly select” either the “fact dependent” methodology or the “permissive fee schedule” methodology in their policy and could not alternate between the two.
“Florida law, though, provides two ways for insurers to calculate reimbursement: i) a “fact dependent method under [section] 627.736(5)(a)1, [Florida Statutes]; or ii.) by utilizing the per missive fee schedules under 627.736(5)(a)2.”
“These methodologies are separate and distinct, an insurer cannot alternate between the two; it must clearly select one in the policy itself, and reasonableness of the medical charges is irrelevant under the fee schedule plan.”
“In other words, since the Defendant did not rely upon the remaining factors within its policy of insurance when processing the Plaintiff’s bill, it cannot now fall back on the fact dependent inquiry to determine reasonableness of the charge. Defendant unilaterally determined ‘reasonableness’ when it calculated reimbursement according to the schedule of maximum charges.”
Defendant’s Policy of Insurance UAIC 200 (02/08)
Defendant’s policy of insurance, UAIC 200 (02/08), delineates what Defendant contractually agreed to pay for PIP benefits. The policy provides that Defendant “will pay . . . 80% of medically necessary expenses.”
The Company will pay, in accordance with the Florida Motor Vehicle No-Fault Law, to or for the benefit of the injured person:
(a) medical benefits — eighty percent of medically necessary expenses defined as a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom that is . . .
UAIC 200 (02/08) (Section I — Personal Injury Protection, page 13).
Defendant’s policy of insurance does not contain the “optional” payment methodology set forth in Fla. Stat. 627.736(5)(a)2., which came into effect as a result of the 2008 statutory amendments to the PIP statute.
Defendant’s policy, by its clear terms, obligates it to pay 80% of medically necessary expenses.” A Court is not free to rewrite a policy that is clear by its express terms. See FIGA v. Somerset Homeowners Assn., Inc., 83 So.3d 850 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2785a]; see also State Farm Fire & Cas. Co. v. Patrick, 647 So.2d 983, 984 (Fla. 3d DCA 1994).
Ambiguities in insurance contracts, if any, “are resolved in favor of the insured”). See DCI MRI, Inc. v. GEICO Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e], quoting GEICO Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55, 58 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Geico should have reimbursed Virtual Imaging for the greatest amount possible within the language of the policies).
The law is also well settled that while the No-Fault Statute establishes the minimum coverage for PIP benefits, an insurer is always free to provide greater coverage than that which is mandated by law and when it does, the terms of the policy will control. See DCI MRI, Inc. v. GEICO Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e], citing Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 68 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] (“when the insurance policy provides greater coverage than the amount required by statute, the terms of the policy will control.”).
Legal Analysis
A party may not create “paper” issues in an attempt to avoid summary judgment and if raised, a court may pierce paper issues and grant summary judgment where no “genuine” issues of fact exist. Hialeah Medical Assoc., Inc., a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir. App. March 7, 2014), Cert. Den. 3D14-0966 (Fla. 3rd DCA 2014).
Affidavit of Denorah Lang tendered by Defendant in opposition to Plaintiff s Motion for Entry of Final Judgment parrots the general factors set forth in subsection (5)(a)1. of the PIP statute claiming same to be the “formula/methodology” utilized by her in determining a reasonable charge.
In other words, in determining what a reasonable charge is for a particular service/supply, I review: 1) the usual and customoary charges and payments accepted by provider at issue (who submitted the charges), 2) reimbursement levels in the community and 3) various state and federal fee schedules applicable to automobile and other insurance coverages.
(Denorah Lang affidavit, ¶ 8).
Affidavit of Ms. Lang is not supported by any cognizable facts other than repeated general statements in support of her purported methodology:
My experience leads me to the opinions expressed herein, because I utilized the above methodology along with my education, years of experience, background, and training (Denorah Lang affidavit, ¶ 10);
The following explains my analysis in reaching the above conclusion, by explaining how my experience and training lead to my opinion . . . (Denorah Lang affidavit, ¶ 11);
By virtue of the background, training and experience I have therefore gained personal knowledge of medical services, and charges, and reimbursements commonly submitted by medical providers . . . (Denorah Lang affidavit, ¶ 12);
I have also reviewed statements of PIP providers in the South Florida area, taking into consideration their typical reimbursements from PIP insurers, cash patients, Medicare and Medicaid . . . (Denorah Lang affidavit, ¶ 13);
I relied on my knowledge and experience, as well as through subrogation claims, PIP claims, Commercial, and general knowledge gained as an all lines adjuster in the State of Florida . . . (Denorah Lang affidavit, ¶ 13);
I relied upon my EOB’s from PIP insurers which I have seen throughout my employment . . . (Denorah Lang affidavit, ¶ 13);
I relied upon my knowledge of the reimbursement of cash patients, as well as the Medicare Fee Schedules, Worker’s Compensation Fee Schedules, and CHAMPUS; as well as EOB’s, negotiations, and settlements with PIP providers who submitted their bills to United, and which were paid and accepted at much lower amounts than what was charged above by this provider . . . (Denorah Lang affidavit, ¶ 13);
In this case, based upon my personal review of the claims file, my personal review of the medical bill(s) submitted by Plaintiff to United Automobile Insurance Company and my personal background, training and experience receiving, analyzing, adjusting and determining reimbursement dollar amounts for PIP claims in South Florida, including the jurisdiction of this Honorable Court, coupled with my personal knowledge of reimbursement levels in the community and my personal knowledge of Medicare reimbursement fee schedules, Worker’s Compensation reimbursement fee schedules and the various federal and state medical fee schedules . . . (Denorah Lang affidavit, ¶ 14).
Affidavit of Ms. Lang contains the following conclusory opinion as same relates to the ultimate issue before this Court:
It is my opinion that these amounts are not reasonable and are above what is reasonable in this community based upon the above employed criteria during the calendar years2009 and 2010, the year(s) in which the services at issue were rendered. (Denorah Lang affidavit, ¶ 10).
I have determined that the medical charges billed by Doctor Rehab Center, Inc., at issue in this litigation are not reasonable in price for the calendar year of 2009 and 2010 which is the year(s) in which the services in this case were rendered. Accordingly, the charges submitted and identified above are unreasonable. (Denorah Lang affidavit, ¶ 14).
The question posed to a jury in a PIP case concerns prices and specifically whether the provider’s charges are reasonable. As to this issue, Ms. Lang’s affidavit sets forth a conclusory opinion that Plaintiff’s charges are “above what is reasonable in the community” and “unreasonable”.
Ms. Lang’s conclusory opinion is insufficient to create a triable issue as she fails to disclose what in fact she considers to be a reasonable charge or a range of reasonable charges in the community for a single service or modality rendered by Plaintiff and otherwise stipulated by Defendant to be a medically necessary and related expense. The affidavit fails to set forth any factual basis in support of her conclusory opinion that Plaintiff’s charges are “above what is reasonable in the community” and “unreasonable”. The affidavit fails to articulate or delineate any factual basis in support of an allegation that Plaintiff’s charges for various treatment and modalities are otherwise outside of the range of what is reasonable.
Florida jurisprudence has consistently disallowed conclusory affidavits containing factual or legal conclusions. See e.g. Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D344a] (“conclusory self-serving statements which are framed in terms only of conclusions of law are not sufficient to” raise a triable issue and defeat summary disposition); Hurricane Boats, Inc., v. Certified Indus. Fabricators, Inc., 246 So.2d 174 (Fla. 3rd DCA 1971)(affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Florida Department of Financial Services v. Associated Industries Ins. Co. Inc., 868 So.2d 600 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D568a]; see also Alvarez v. Florida Ins. Guaranty Association, Inc., 661 So.2d 1230 (Fla. 3rd DCA 1995) [20 Fla. L. Weekly D2214a] (corporate officer’s affidavit which merely states conclusions or opinions is insufficient, even if it is based on personal knowledge); TSI Southeast, Inc., v. Royals, 588 So.2d 309 (Fla. 1st DCA 1991)(counter affidavits filed for purposes of avoiding summary judgment must be based on personal knowledge and must set forth facts upon which affiant relies; mere conclusions by affiant are insufficient, and party does not create fact question merely placing his assertions in affidavit form); Dean v. Gold Coast Theatres, Inc., 156 So.2d 546 (Fla. 2nd DCA 1963)(statements of ultimate facts are of no weight in affidavit in support of motion for summary judgment). Defendant cannot “merely assert that an issue does exist,” but rather “must go forward with evidence sufficient to generate an issue on a material fact.” see also Byrd v. Leach, 226 So.2d 866 (Fla. 4th DCA 1969).
Ms. Lang has not worked for a medical facility and has no experience in the medical field or billing in the medical field. She claims to have relied upon on various factors but provides no support, facts, or specificity to support her allegation. For example, Ms. Lang claims to have relied on reimbursements from other PIP insurers; however, she fails to disclose the identity of these other PIP insurers, the amounts reimbursed by said insurers for services at issue in this case, and whether these insurers have in fact endorsed their policies to provide for “fee schedule” payments. Ms. Lang claims to have relied on reimbursement of cash patients, Medicare Fee Schedules, Medicaid, Worker’s Compensation Fee Schedules, and CHAMPUS; however, she fails to disclose the identity of these cash patients, or the amounts reimbursed by Medicare, Medicaid, Worker’s Compensation, and CHAMPUS for services at issue in this case or more importantly, why these sources would be relevant to the instant matter given Defendant’s policy of insurance. This affidavit is insufficient to create a triable issue as Defendant has provided no evidence that would otherwise reflect Plaintiff’s charge is outside of the range of what is reasonable.
In sum, Ms. Lang’s affidavit provides nothing other than a parroting of the general factors set forth in the PIP statute for determining whether a charge is reasonable coupled with numerous references to her experience as an adjuster. Clearly, under the PIP statute Defendant is obligated to pay 80% of a billed amount if same is “reasonable”, however, Ms. Lang’s affidavit does not set forth an opinion as to reasonableness of charges for codes at issue instead opting to opine in a conclusory fashion that the charges are “above what is reasonable” and “not reasonable in price”. These conclusory statements do not create an issue of fact as to reasonableness of Plaintiff’s charges and cannot possibly be “rationally based on her perception” as Defendant attempted to pay everything “based on fee schedule reductions” without a proper policy election to do so.
Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991 citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985); see also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists, a/a/o Maria Borche, 19 Fla. L. Weekly Supp 799a (Fla. 11th Cir. App. June 19, 2012) (testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. 90.702).
At least two other county courts have found similar affidavits of Ms. Lang as failing to qualify as lay witness testimony relied upon by Defendant to create a triable issue as to reasonableness of a medical providers’ charges. See Millennium Radiology, LLC, a/a/o Carmen Ruiz v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 136b (Fla. 17th Cir., Broward County Court, Judge DeLuca, July 14, 2014); Miami-Dade County MRI, Corp., a/a/o Erlin Duran v. United Automobile Insurance Company, case # 12-13550 SP 23 (Fla. 11th Cir., Miami-Dade County, Judge Multack, December 9, 2016); see also Miami-Dade County MRI, Corp., a/a/o Aleshia Keith v. United Automobile Insurance Company, 24 Fla. L. Weekly Supp. 644a (Fla. 11th Cir., Miami-Dade County, Judge Multack, January 5, 2017) (reaching the same result considering a similar affidavit by John O’Hara, an adjuster for Defendant).
Ms. Lang’s affidavit fails to disclose the reasonable charge or range of charges for a single treatment or modality at issue in this case. In doing so, the affidavit effectively excludes from consideration any amounts, charges, or reimbursements that would exceed 200% of Medicare Part B. Ms. Lang’s affidavit is designed to advance a litigation position maintained by Defendant that is not only contrary to Defendant’s policy of insurance but also in violation of binding precedent. To allow Ms. Lang’s conclusory affidavit testimony, despite a failure on the part of Defendant to provide notice of an exclusive election to use the Medicare Fee Schedule methodology, would render the Florida Supreme Court decision in Virtual Imaging meaningless. See Hialeah Medical Assoc., Inc., a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir. App. March 7, 2014), Cert. Den. 3D14-0966 (Fla. 3rd DCA 2014); State Farm Mutual Auto. Ins. Co. v. Imaging Centers of Pensacola, Inc., 21 Fla. L. Weekly Supp. 979a (Fla. 1st Jud. Cir. App. March 7, 2014)
By excluding from consideration any amounts, charges, or reimbursements that would exceed 200% of Medicare Part B, affidavit of Ms. Lang’s attempts to imply and advance an opinion that is contrary to the law as it purports to opine that an amount equal to the floor set forth by the legislature in the No-Fault Act under Fla. Stat. 627.736(5)(a)2. is actually the maximum reasonable charge under the No-Fault Act.
The “Medicare Fee Schedule” methodology provides for the lowest possible reimbursement. See Nationwide Mutual Fire Insurance Company v. AFO Imaging, Inc., 71 So.3d 134 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b] (“the participating physicians schedule of Medicare Part B” is “the operative fee schedule to be utilized in computing the minimum amount the Insurance Companies were statutorily authorized to remit.”); see also SOCC, P.L. d/b/a South Orange Wellness v. State Farm Mutual Automobile Insurance Company, 95 So.3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]; Windsor Imaging (Roniel Morris) v. State Farm Mut. Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Broward County Court 2011)(Judge Lee) (“The No-Fault Act set the floor with respect to the minimum reimbursement under Florida Statute 627.736(5)(a)2.f.” and the issue is not “whether State Farm paid a reasonable amount, rather whether the amount charged for the service at issue was reasonable.”); Health Diagnostics of Fort Lauderdale, LLC (John Winn) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 292b (Broward County Court 2012)(Judge Deluca) (opposing affidavit by adjuster stating that the adjuster is familiar with usual and customary charges by virtue of reviewing thousands of explanations of benefits and stating 80% of 200% of Medicare fee schedule to be the maximum reasonable charge is insufficient to create a genuine issue of fact as to the medical providers charges and Fla. Stat. 627.736(5)(a)2.f. “sets the floor with respect to the minimum reimbursement”); Pan Am Diagnostic Services, Inc (Joel Pasterin) v. Metropolitan Cas. Ins. Co., 19 Fla. L. Weekly Supp. 874a (Broward County Court 2012)(Judge Zeller) (citing to Windsor supra for the proposition that “[t]he No Fault Act set the floor with respect to the minimum reimbursement under Fla. Stat. 627.736(5)(a)(2)”).
Testimony or an argument that fee schedule payments standing alone without consideration of reasonableness of amounts charged does not create a factual issue as to reasonableness of a medical provider’s charges. See e.g., Health Diagnostics of Ft. Lauderdale, LLC (John Winn) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 292b (Broward County Court 2012)(Judge DeLuca); Hallandale Open MRI, LLC (Tramaine Morgan) v. State Farm, 20 Fla. L. Weekly Supp. 683a (Broward County Court 2013)(Judge Schiff); Hallandale Open MRI, LLC (Mustafa Nassar) v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 587a (Broward County Court 2012)(Judge De Luca); New Smyrna Imaging, LLC (Francis Horgan) v. State Farm, 20 Fla. L. Weekly Supp 671a (Broward County Court 2012)(Judge Sanders); Hallandale Open MRI, LLC (Carnes Vilatte) v. United Automobile Insurance Company, 22 Fla. L. Weekly Supp. 851a (Fla. 17th Cir., Broward County Court, Judge Miranda, January 13, 2015)(disallowing testimony of a defense expert noting that his knowledge as to what Medicare and Health Insurers allow is insufficient to qualify his opinion as an expert on issue of charges). Although not binding, the uniformity of County Court Orders on this issue is persuasive. See Star Casualty v. U.S.A. Diagnostic, Inc., 855 So.2d 251, 253 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2274a].
Fla. Stat. 627.736(5)(a) provides in pertinent part:
In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute.
Clearly, the statute provides that it is the “charges and payments accepted by the provider involved in the dispute” that is relevant to a reasonableness of charges inquiry. In that regard, Affidavit of Mr. Dempsey filed with this Court reflects that during the relevant time periods at issue Plaintiff was not a Medicare or Medicaid provider, was not a Worker’s Compensation provider, was not a participant in any HMO or PPO managed care plans, and primarily treated patients involved in automobile accident and billed PIP insurance carriers under Florida’s No-Fault act.
Although the statute authorizes consideration of charges and payments “accepted by the provider” involved in the dispute, Ms. Lang conclusory opinion alleges to have relied upon facts that are completely inapplicable to the Plaintiff in this case as Plaintiff does not accept any such plans.
I relied upon my knowledge of the reimbursement of cash patients, as well as the Medicare Fee Schedules, Worker’s Compensation Fee Schedules, and CHAMPUS; as well as EOB’s, negotiations, and settlements with PIP providers who submitted their bills to United, and which were paid and accepted at much lower amounts than what was charged above by this provider. . .(Denorah Lang affidavit, ¶ 13).
Finally, Ms. Lang’s reliance on inapplicable and irrelevant evidence such as Medicare, HMO, PPO, and other non-automobile related coverages may have also been misplaced insofar as same are inapplicable in light of Defendant’s policy of insurance. See Hialeah Medical Assoc., Inc. (a/a/o Ana Lezcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Judicial Cir. App., March 7, 2014) (“Medicare Fee Schedules are not relevant in PIP cases, and should not be used.”); Virtual Imaging Services, Inc., a/a/o Framcoise Leon v. State Farm Mutual Auto. Ins. Co., 23 Fla. L. Weekly Supp. 515a (Fla. 11th Judicial Circuit App., 2015) (questioning relevancy of information pertaining to reduced rate contracts, such as HMO and PPO payors, in PIP cases since the carrier as a “non-contracting party, sits in a significantly different position from the HMO and PPO entities that contract with [the medical provider] for mutual benefit”); see also, Hallandale Open MRI, LLC (Carnes Vilatte) v. United Auto. Ins. Co., 22 Fla. L. Weekly Supp. 851a (Fla. 17th Cir., Broward County Court, Judge Miranda, January 13, 2015) (disallowing expert testimony of defense noting that his knowledge as to what Medicare and Health Insurers allow is insufficient to qualify his opinion as an expert on issue of charges); All Care Health and Wellness Center (Sharon Hooks) v. State Farm Mutual Auto. Ins. Co., 23 Fla. L. Weekly Supp. 596a (Fla. 11th Cir., Miami-Dade County Court, Judge Lehr) (rejecting opinion on charges premised on reliance of irrelevant fee schedules); Gables MRA a/a/o Marvin Hernandez v. State Farm Mutual Auto. Ins. Co., 22 Fla. L. Weekly Supp. 949a (Fla. 11th Circuit 2014) (finding that evidence of payments made pursuant to non-automobile related coverages such as HMO, PPO, and Medicare agreements are not relevant in a PIP case); Rivero Diagnostic Center, Inc., a/a/o Disney R. Companioni v. State Farm Mutual Auto. Ins. Co., 21 Fla. L. Weekly Supp. 690a (Fla. 11th Circuit 2014) (finding that HMO and PPO contracts are not relevant and further that “Medicare fee schedule rates are not relevant in PIP to determine whether a medical provider’s charges are reasonable”).
Based on the foregoing, this Court holds that Affidavit of Denorah Lang constitutes inadmissible affidavit testimony and fails to create a triable issue as to reasonableness of Plaintiff’s charges.
Doctrine of Collateral Estoppel (Issue Preclusion)
During the pendency of the instant case, in Doctor Rehab Center, Inc., a/a/o Julian Grillo v. United Automobile Insurance Company, Case No. 11-01877 SP 26 (04), the identical parties to this action litigated the reasonableness of Plaintiff’s charges for the following eleven (11) treatment, modalities, and/or CPT codes which are also at issue in this case: 99203, 99213, G0283, 97035, 97010, 98940, 97124, 97012, 97140, 97530, and 97112.
This Court then entered an Order finding Plaintiff’s charges to be reasonable in price, as a matter of law, and entered Final Judgment in favor of Plaintiff and against Defendant.
“Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that have already been decided.” Department of Health and Rehabilitative Services v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) [20 Fla. L. Weekly S188a] (citing to Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977) (action by oil companies should have been dismissed under doctrine of collateral estoppel since identical issue of Attorney General’s authority was previously determined by the Fifth District Court of Appeals); see also, Seaboard Coast Line Railroad v. Cox, 338 So.2d 190 (Fla. 1976) (approving the District Court of Appeals’ affirmance of lower court’s grant of partial summary judgment as to issue of liability based on doctrine of collateral estoppel or estoppel by judgment); Weiss v. Courshon, 768 So.2d 2 (2000) [25 Fla. L. Weekly D1237a] (applying the doctrine of collateral estoppel to prevent relitigating an action for accounting and breach of fiduciary duties, which was decided in federal Court); Provident Life and Accident Insurance Company v. Genovese, M.D., 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (reversing a trial court’s denial of a motion for directed verdict and remanding for entry of directed verdict based on doctrine of collateral estoppel).
“The doctrine is intended to prevent repetitious litigation of what is essentially the same dispute”. Provident Life and Accident Ins. Co. v. Genovese, M.D., 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (citing Zimmerman v. State of Florida Office of Insurance Regulation, 944 So.2d 1163 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3126a]). The doctrine “serves to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” United States v. Mendoza, 464 U.S. 154, 158 (1984) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)).
Florida jurisprudence reflects that courts have applied the doctrine to various areas of law and causes of action such as breach of contract,5 wrongful death,6 negligence,7 declaratory relief,8 dissolution of marriage,9 uninsured motorist claim,10 constitutional challenges,11 action for accounting and breach of fiduciary duties,12 and appeals from administrative rulings13.
“The essential elements of the doctrine are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction.” Department of Health and Rehabilitative Services v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) [20 Fla. L. Weekly S188a] (quoting Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977)); Seaboard Coast Line Railroad v. Cox, 338 So.2d 190 (Fla. 1976).
The Third District Court of Appeals has articulated and held that the following elements must be met for the application of the doctrine of collateral estoppel: (1) the identical issues were presented in a prior proceeding; (2) there was a full and fair opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior litigation were a critical and necessary part of the prior determination; (4) the parties in the two proceedings were identical; and (5) the issues were actually litigated in the prior proceeding. See e.g., Pearce v. Sandler, 219 So.3d 961 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1214b] (citing to Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004) [29 Fla. L. Weekly S21a]; see also Carnival Corp. v. Middleton, 941 So.2d 421 (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D2480a].
The identical parties to this action previously litigated the reasonableness of Plaintiff’s charges for CPT codes 99203, 99213, G0283, 97035, 97010, 98940, 97124, 97012, 97140, 97530, and 97112 to final judgment in Doctor Rehab Center, Inc., a/a/o Julian Grillo v. United Automobile Insurance Company, Case No. 1101877 SP 26 (04). As such, the first element for application of the doctrine has been met.
Next, “[a]n issue is a critical and necessary part of the prior proceeding where its determination is essential to the ultimate decision.” Provident Life and Accident Ins. Co. v. Genovese, M.D., 138 So.3d 474, 478 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (citing Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1215 (Fla. 2nd DCA 1996) [21 Fla. L. Weekly D1881a]). In the context of PIP litigation, the issue of reasonableness of charges is not only “a critical and necessary part of the prior determination” of litigation, but same is in fact part and parcel of Plaintiff’s prima facie burden of proof. See Derius v. Allstate Indemnity Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. As such, the third element for application of the doctrine has been met.
As it pertains to the second and fifth elements necessary for application of the doctrine, both of these elements are also met. Specifically, a review of this Court’s docket for the prior case litigated between the parties reflects that they had a full and fair opportunity to fully litigate the issue of reasonableness of Plaintiff’s charges and the issue was actually litigated through final judgment after extensive motion practice, discovery, presentation of evidence, and service of affidavits and record evidence as to the central issue of reasonableness of Plaintiff’s charges.
Finally, the parties to the instant action are the identical parties in the Doctor Rehab Center Inc., a/a/o Julian Grillo v. United Automobile Insurance Company, Case No. 11-01877 SP 26 (04), where the issue of reasonableness of Plaintiff’s charges was litigated through final judgment. As such, the fourth element for application of the doctrine has also been met.
Once the elements are met, a court is obligated to apply the doctrine of collateral estoppel. Provident Life and Accident Ins. Co. v. Genovese M.D., 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (reversing a trial court’s denial of a motion for directed verdict and remanding for entry of directed verdict based on doctrine of collateral estoppel); see also, Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977) (remanding action to trial court with directions to have action by oil companies dismissed under doctrine of collateral estoppel since the issue pertaining to Attorney General’s authority was previously adjudicated adversely to the companies by the Fifth District Court of Appeals).
Based on the foregoing, this Court finds that all elements for application of the doctrine of collateral estoppel have been met and Defendant is precluded from re-litigating the reasonableness of Plaintiff’s charges for CPT codes 99203, 99213, G0283, 97035, 97010, 98940, 97124, 97012, 97140, 97530, and 97112 previously litigated through final judgment. To hold otherwise would circumvent the purpose and intent of the doctrine, result in unnecessary repetitious litigation, undermine the parties’ reliance on prior adjudication, allow inconsistent decisions, and needlessly expend otherwise scarce judicial resources.
Conclusion
Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Entry of Final Judgment is hereby GRANTED as to the sole remaining issue of reasonableness of Plaintiff’s charges.
IT IS ADJUDGED that Plaintiff, DOCTOR REHAB CENTER, INC., recover from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, the sum of $2,431.10 on principal and prejudgment interest in the sum of $1,139.06, that shall bear interest at the rate of 5.53% per year, for which let execution issue. Counsel for Plaintiff is entitled to an award of attorney’s fees and costs associated with this action and the Court reserves jurisdiction to determine the amount of same.
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1Defendant’s Answer and Affirmative Defenses provides in pertinent part that “it tendered payment to the Plaintiff based on fee schedule” and that “payment was issued based on the fee schedule pursuant to the Florida statute . . .” (Defendant’s Answer, ¶ 10 and Defendant’s Second Affirmative Defense).
2Defendant’s response to Plaintiff’s Request for Admission # 11 and 12 confirms that Defendant “issued payment for what was related and necessary based on the fee schedule” . . .
3On May 10, 2011 Plaintiff filed Defendant’s correspondence and confession of judgment with this Court and same reflect that payments tendered by Defendant were “based on fee schedule reductions.”
4Defendant’s statutory mandated Explanations of Review attached to Defendant’s correspondence and confession of 04/29/11 contain a reason code and an explanation as to payments tendered and same confirms that “reimbursement has been calculated according to the state fee schedule guidelines.”
5See e.g., West Point Const. Co. v. Fidelity and Deposit Co. of Maryland, 515 So.2d 1374 (Fla. 3rd DCA 1987); Daniel Intern. Corp. v. Better Const., Inc., 593 So.2d 524 (Fla. 3rd DCA 1991); Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981); Provident Life and Accident Insurance Company v. Genovese, 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b].
6See e.g., Rehe v. Airport U-Drive, Inc., 63 So.2d 66 (Fla. 1953); Seaboard Coast Line Railroad Co. v. Cox, 338 So. 2d 190 (Fla. 1976).
7See e.g., Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla. 1956); Lorf v. Indiana Insurance Co., 426 So.2d 1225 (Fla. 4th DCA 1983); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).
8See e.g., Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla. 1977); Paresky v. Miami-Dade County Bd. Of County Com’rs, 893 So.2d 664 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D462b]; Essenson v. Polo Club Associates, 688 So. 2d 981 (Fla. 2nd DCA 1997) [22 Fla. L. Weekly D552a].
9See e.g., Field v. Field, 91 So.2d 640 (Fla. 1956).
10See e.g., U.S. Fidelity & Guar. Co. v. Odoms, 444 So. 2d 78 (Fla. 5th DCA 1984).
11See e.g., GLA and Associates, Inc., v. City of Boca Raton, 855 So.2d 278 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2318a].
12See e.g., Weiss v. Courshon, 768 So.2d 2 (Fla. 3rd DCA 2000) [25 Fla. L. Weekly D1237a].
13See e.g., Zimmerman v. State Office of Ins. Regulation, 944 So.2d 1163 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3126a].
