25 Fla. L. Weekly Supp. 187a

Online Reference: FLWSUPP 2502MCLEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Medical provider seeking summary judgment on issue of reasonableness of charges has failed to meet burden to demonstrate nonexistence of question of material fact where supporting affidavit states that charges are reasonable “to reasonable degree of chiropractic probability” and offers no evidence that consideration was given to statutory reasonableness factors — Insurer’s motion to declare sections 90.702 and 90.704 unconstitutional is denied where insurer has not explained how its constitutional rights will be violated by implementation of those sections and, absent that information, court is unable to identify cognizable controversy on which to rule — Question certified: Whether Florida Supreme Court’s ruling in In re Amendments to the Florida Evidence Code intended to revert sections 90.702 and 90.704 (2013) to pre-Daubert standard or should trial courts continue to utilize those sections until decision on constitutionality of those sections is ruled upon

OCEAN HEALTH, INC., a/a/o Jeptha McLean, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-2972 CC 23 (06). April 20, 2017. Spencer J. Multack, Judge. Counsel: Todd Landau, and Gregory Gudin, for Plaintiff. Adam J. Shapiro, House Counsel for UAIC, for Defendant.

ORDER DENYING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT and ORDERDENYING DEFENDANT’S MOTION TO DECLAREFLORIDA EVIDENCE CODE 90.702, 90.704 AND THEDAUBERT STANDARD UNCONSTITUTIONAL andCERTIFYING A QUESTION OF GREATPUBLIC IMPORTANCE

THIS CAUSE having come before the Court on April 3, 2017, on the Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion to Declare Florida Evidence Code 90.70, 90.704 and the Daubert Standard Unconstitutional, this Court, having heard argument of counsel and being otherwise fully advised in the premises, finds as follows;

FINDINGS OF FACT

This case involves a claim for PIP benefits pursuant to Florida’s Motor Vehicle No Fault Law. The issues addressed in the motion and discussed at the hearing are whether the charges submitted by the Plaintiff, Ocean Health, Inc., are reasonable in price. The Defendant has stipulated to the issues of relatedness and medical necessity.

In support of its motion, the Plaintiff relied on the affidavit of Robert Frankl, DC. In his affidavit, Dr. Frankl states that the amounts charged in this case “are reasonable and within the usual and customary range for Miami Dade County in the year 2011,” and that “other insurance companies have issued full payments for . . . identical services that were performed in this case.”¹ The medical bills were also presented as evidence of the reasonableness of the Plaintiff’s charge. The Defendant submitted an affidavit of Marcia Lay, the Defendant’s litigation adjuster.

STANDARD ON MOTION FOR SUMMARY JUDGMENT

The Plaintiff has the initial burden of presenting sufficient admissible evidence to support his claim of the non-existence of a genuine issue. As stated in Harvey Building Inc. v. Hayley, 175 So.2d 780 (Fla. 1965),

The initial burden [for summary judgment], therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent’s witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.

The initial burden is further elaborated on in Wells Fargo v. Bilecki, 192 So.3d 559 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1179a] ([o]nly where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence) and Lenhal Realty, Inc. v. Transmerican Commercial Finance Corp. 615 So.2d 207 (Fla. 4th DCA 1993) (the burden is initially on the movant for summary judgment to demonstrate the nonexistence of any question of material fact, and only when the movant has tendered competent evidence in support of its motion does the burden shift and fall on the other party to come forward with opposing evidence to show that a question of material fact exists.)

“[S]ummary judgment procedure is necessarily in derogation of the constitutionally protected right to trial.” Holl v. Talcott, 191 So. 2d 40, 48 (Fla. 1966). Therefore, a party to a civil suit is entitled to summary judgment only, “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, 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.” Fla. R. Civ. P. 1.510(c). “[T]he party moving for summary judgment must show conclusively that no material issues remain for trial.” Visingardi v. Tirone, 193 So. 2d 601, 604 (Fla. 1966). “In other words, the burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at the trial.” Id. “The burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail.” Mejiah v. Rodriguez, 342 So. 2d 1066, 1067 (Fla. 3d DCA 1977). “Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).

REASONABLENESS OF THE PLAINTIFF’S CHARGE

With respect to a determination of 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, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. Florida Statute §627.736(5)(a)(1) (2011).

“As always, legislative intent is the polestar that guides a court’s inquiry under the No-Fault Law,” including the PIP statute. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 154 (Fla. 2013) [38 Fla. L. Weekly S517a]. “Such intent is derived primarily from the language of the statute.” Allstate v. Holy Cross Hosp., Inc., 961 So. 2d 328, 334 (Fla. 2007) [32 Fla. L. Weekly S453a]. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a].

In the instant case, the only facts presented by the Plaintiff as to the reasonableness of the charges was the affidavit of Dr. Robert Frankl and the Health Insurance Claim Forms. Dr. Frankl offered two sentences in his affidavit supporting the reasonableness of his charges:

“Based on my experience, it is my opinion, within a reasonable degree of chiropractic probability, that the amount charged in this case are reasonable and within the usual and customary range for Miami-Dade County in 2011,” and

“In addition, other insurance carriers have issued full payments for all intents and purposes identical services that were performed in this case.”

Dr. Frankl offered no evidence, corroborating or otherwise, to establish that consideration was given to the factors listed in §627.736(5)(a)(1). Further, he offered his opinion on the reasonableness of the charge to a, “reasonable degree of chiropractic probability.” This Court is left wondering how “chiropractic probability” applies to the Plaintiff’s charge at all. Rather, the Plaintiff avers that the charges are reasonable because he says so. Simply put, the Plaintiff has failed to establish the initial burden demonstrating the nonexistence of any question of material fact. Since he has failed to do so, the burden has not shifted to the opposing party. The Court finds that genuine issues of material fact exist in this matter that should be determined at trial.

DEFENDANT’S MOTION TO DECLARE FLORIDAEVIDENCE CODE 90.702, 90.704 AND THE “DAUBERT”STANDARD UNCONSTITUTIONAL IS DENIED

The Defendant seeks this Court to declare §§90.702, 90.704 unconstitutional. However, the Defendant offers no facts, circumstances, or controversy explaining how the Defendant’s constitutional rights will be violated by the implementation of §§90.702, 90.704. Without such details, this Court is unable to identify a cognizable controversy on which to rule. The Florida Supreme Court’s ruling in In re Amendments to the Florida Evidence Code, 2017 WL 633770 (Fla. 2017) [42 Fla. L. Weekly S179a], does not declare §§90.702, 90.704 unconstitutional, opting to wait for a case in controversy. This is not that case, and without direction from the Supreme Court as to the application of §§90.702, 90.704 (2013) or §§90.702, 90.704 pre-Daubert, this Court presumes the law as currently written is the law that controls.

Needless to say, Amendments has caused confusion throughout the State of Florida, as lawyers and judges grapple over which evidentiary standard to apply. This is causing delays in litigation, resolution, and trial. Thus, this Court CERTIFIES A QUESTION OF GREAT PUBLIC IMPORTANCE:

WHETHER THE FLORIDA SUPREME COURT’S RULING IN AMENDMENTS INTENDED TO REVERT §§90.702, 90.704 (2013) TO THE PRE-DAUBERT STANDARD OR SHOULD THE TRIAL COURTS OF THIS STATE CONTINUE TO UTILIZE §§90.702, 90.704 (2013) UNTIL A DECISION ON THE CONSTITUTIONALITY OF §§90.702, 90.704 (2013) OF IS RULED UPON?

CONCLUSION

THEREFORE, based upon the above findings of facts, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is DENIED. The Defendant’s Motion to Declare Florida Evidence Code 90.702, 90.704 and the Daubert Standard Unconstitutional is DENIED and a QUESTION OF GREAT PUBLIC IMPORTANCE CERTIFIED.

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¹See affidavit of Robert Frankl DC (12/02/16), ¶¶ 11-12