25 Fla. L. Weekly Supp. 384a
Online Reference: FLWSUPP 2504YHERInsurance — Personal injury protection — Affirmative defenses — Accord and satisfaction — Where insurer tendered funds to medical provider after application of statutory fee schedule under belief that it was paying full amount sought by provider, there was no superceding agreement to resolve existing dispute and, therefore, no common law accord and satisfaction — Summary judgment — Reasonableness of charges — Affidavit of insurer’s expert averring that provider’s charges for MRIs at issue are almost double amount expert charges for same MRIs is sufficient to preclude entry of summary judgment on issue of reasonableness of charges
MILLENNIUM RADIOLOGY, LLC (a/a/o Yesenia Heredia), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-23844 COCE 53. March 22, 2017. Robert W. Lee, Judge. Counsel: Wajih A. Shirazi and Antonella Dos Santos, for Plaintiff. Sean Sweeney, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT ON COMMON LAW ACCORDAND SATISFACTION, and ORDER GRANTING IN PARTAND DENYING IN PART PLAINTIFF’S MOTION FORSUMMARY JUDGMENT ON REASONABLENESS,RELATEDNESS, AND MEDICAL NECESSITY
THIS CAUSE came before the Court on March 21, 2017 for hearing of the Plaintiff’s Motion for Summary Judgment on Common Law Accord and Satisfaction, and the Plaintiff’s Motion for Summary Judgment on RRN, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of all “summary judgment evidence” filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
The elements of the defense of common law accord and satisfaction are set forth in Republic Funding Corp. v. Juarez, 563 So.2d 145 (Fla. 1990): (1) a preexisting dispute as to the nature and extent of an obligation between the parties; (2) their mutual intent to effect settlement of that dispute by a superseding agreement, and (3) the obligor’s subsequent tender and obligee’s acceptance of performance of the new agreement in full satisfaction of the prior disputed obligation. The instant case differs from other reported PIP cases on the defense of accord and satisfaction in that the Defendant in the instant case tendered funds under the belief that it was paying the full amount sought by using the statutory fee schedule calculation — there was no “dispute” between the parties. It follows then that the Defendant’s tender of the full amount it believed was owed under the statute could not be a “superseding agreement” to resolve the existing “dispute.” Moreover, even if this were not the case, the letter accompanying the Defendant’s tender in no way addresses any possible dispute, making this case different on a relevant point from the facts upon which the Fourth District Court of Appeal relied on in it dicta in United Automobile Ins. Co. v. Palm Chiropractic Center, Inc., 51 So.3d 506 (Fla. 4th DCA 2011) [35 Fla. L. Weekly D2686a].
As to the issues of RRN, the Defendant stipulated at the pretrial conference that relatedness and medical necessity were not an issue, leaving reasonableness of the pricing as the sole issue. At the hearing, the Plaintiff demonstrated its prima facie case on this issue, which the Defendant attempted to contravene by the affidavit of Dr. Edward Dauer. In his affidavit, Dr. Dauer avers that his own charges for the two MRIs in question (both at the time of the service and as of the date of his affidavit) are $1,080.00 and $1,160.00 (Aff. of 5/12/16, ¶18). He further explains that he reviewed and relied on other specified contracts “with insurance companies, including governmental, workers’ compensation, HMO/PPO, and other third party payors that rely on Medicare as the basis of determining reimbursement” (Aff. ¶11). He relied on actual medical bills that he had previously issued for the same type of MRIs as are in dispute in this case (Aff. ¶12). He is the managing member of an imaging facility that has been providing MRI services in Broward County for over thirty years (Aff. ¶14). The Plaintiff’s charges in this case are almost double those of Dr. Dauer. While he concedes that charges in Miami-Dade are “slightly higher than Broward County” (Aff. ¶ 13), he concludes that the Plaintiff’s charges are “excessive and are significantly higher than reasonable charges” (Aff. ¶17). Dr. Dauer relies on more than mere Medicare fee schedules in reaching his conclusion. The Court cannot ignore the large gulf between Dr. Dauer’s own prices and the Plaintiff’s prices for the same services. The Court finds that Dr. Dauer’s testimony is sufficient for purposes of summary judgment to demonstrate a disputed issue of material fact on whether the Plaintiff’s charges are reasonable.
That being said, the Court finds problematic Dr. Dauer’s testimony that anything above 200% of Medicare is per se unreasonable (Aff. ¶¶ 18, 24). The Court finds that such testimony would not be permitted at trial. However, these proffered conclusions do not mean that the Court should disregard Dr. Dauer’s entire affidavit. Morever, at trial, the inquiry into reasonableness is two-fold: (1) whether the provider’s charges are reasonable, and if not, (2) what amount is reasonable. For purposes of this summary judgment motion, the Court finds that the Defendant has demonstrated a disputed issue of material fact as to the first inquiry. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment on Common Law Accord and Satisfaction is GRANTED, and the Plaintff’s Motion for Final Summary Judgment on RRN is GRANTED IN PART AND DENIED IN PART. The case shall proceed to trial on the sole issue of whether the Plaintiff’s charges are reasonable.
