25 Fla. L. Weekly Supp. 481a
Online Reference: FLWSUPP 2505RICAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit of insurer’s expert is sufficient to create triable issue of fact as to reasonableness of provider’s charges — Provider’s motion for summary judgment is denied
MILLENNIUM RADIOLOGY, LLC, a/a/o Melba Ricardo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-15152 SP 23 (04). June 30, 2017. Alexander S. Bokor, Judge. Counsel: Gary Marks and Amir Fleischer, Marks & Fleischer, for Plaintiff. Sean M. Sweeney, House Counsel – Trial Division, UAIC, Miami, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
Plaintiff brings a claim for PIP benefits pursuant to Fla. Stat. 627.736. The motion for summary judgment at issue addresses the reasonableness of Plaintiff’s charges. Plaintiff argues that it presents a prima facie case of reasonableness through the affidavit of Roberta Kahana, corporate representative and owner of Plaintiff. In pertinent part, Plaintiff also argues that Defendant’s expert affidavit of Dr. Eduard Dauer filed in opposition fails to create a genuine issue of material fact. Therefore, this court is confronted with two questions — does Plaintiff present a prima facie case, and does Defendant offer any evidence to place a material fact in dispute.
This Court finds instructive the holding of Millennium Radiology, LLC a/a/o Robert Berretti v. United Auto. Ins. Co., 24 Fla. L. Weekly Supp. 989a (Fla. 11th Jud Cir. 2017) (Multack, J.). In that case, the Court examined nearly identical affidavits of the parties at issue in this case. It held:
The Court finds the affidavit of Roberta Kahana, in this matter, satisfies the initial burden defined by Harvey v. Haley, and is sufficient to shift the burden to Defendant. The Defendant has submitted the affidavit of Dr. Eduard Dauer and Monica Johnson. Specifically as to Dr. Dauer’s affidavit submitted on this matter, the Court finds that his affidavit satisfies the rigors of F.S. 90.702. Id. at 2. The Court also notes that although, like this Court, other affidavits of Dr. Dauer have been stricken in their entirety for failure to comply with 90.702, the “Court reviews each affidavit independently and, as such, has found that this particular affidavit meets Daubert criteria for the specific sets of facts in this matter.” Id.
This Court finds the factual analysis of the affidavits under the legal standards articulated in Barretti applicable to the instant case, and adopts the order therein as applied to the facts of this case. Accordingly, although Plaintiff establishes a prima facie case, Defendant has at least created a triable issue of fact regarding reasonableness to survive summary judgment. Plaintiff’s amended motion for summary judgment filed April 3, 2017, is therefore DENIED.
