25 Fla. L. Weekly Supp. 507b
Online Reference: FLWSUPP 2506BENEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit offered by insurer in opposition to provider’s motion for summary judgment was insufficient to create factual issue where affiant focused on whether insurer paid a reasonable amount and whether that amount was reasonable under Medicare Part B fee schedule — County court properly entered summary judgment in favor of provider on issue of reasonableness — Relatedness and medical necessity — Affidavit offered by insurer was sufficient to create genuine issue of material fact as to relatedness and medical necessity of services rendered by provider, with the exception of initial consultation — Order granting partial summary judgment as to issues of relatedness and medical necessity reversed as to all services other than initial consultation
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. AQUINO CHIROPRACTIC CENTER, P.A., a/a/o Louise Bene, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE14-022001 (AP). L.T. Case No. COCE12-014544. March 21, 2017. Appeal from the County Court for the 17th Judicial Circuit, Broward County. Robert W. Lee, Judge. Counsel: Nancy W. Gregoire, Birnbaum, Lippman, Gregoire, PLLC, Fort. Lauderdale, and Jose Font, Vernis & Bowling of Broward, P.A., Hollywood, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Appellee.OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Aquino Chiropractic Center, P.A. (“Aquino”). Having carefully reviewed the briefs, the record and the applicable law, this Court dispenses with oral argument, and finds that the final judgment should be affirmed in part and reversed in part as set forth below.
In the underlying case, Aquino sued State Farm for breach of contract for personal injury protection benefits. Aquino filed a motion for partial summary judgment as to the relatedness and medical necessity of the medical services rendered. In support of its motion, Aquino filed the affidavit of its owner and the treating physician, Dr. Anthony Aquino (“Dr. Aquino”). Relying on Dr. Aquino’s deposition testimony and the affidavit of Dr. Bradley Simon (“Dr. Simon”), State Farm opposed Aquino’s motion for partial summary judgment. After a hearing, the county court granted Aquino’s motion for partial summary judgment as to the relatedness and medical necessity of the medical services rendered.
Aquino also filed a motion for final summary judgment as to the reasonableness of its charges. Aquino relied on the deposition testimony of the insured, Dr. Aquino and Kristin Vetere (“Vetere”), the billing coordinator and records custodian for Aquino, as well as the affidavit of Vetere. Relying on the deposition testimony of Dr. Aquino and Vetere, Vetere’s affidavit and Dr. Simon’s amended affidavit as to reasonableness, State Farm opposed Aquino’s motion for final summary judgment. After a hearing, the county court granted Aquino’s motion for final summary judgment. Subsequently, the county court entered a final judgment in favor of Aquino.
“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo.’ ” Harris v. Aberdeen Prop. Owners Assn., Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D193a] (quoting Major League Baseball v. Morsani 790 So.2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]). With respect to the county court’s entry of summary judgment as to the issue of reasonableness of Aquino’s charges, State Farm argues that (1) Aquino fails to satisfy its summary judgment burden, and (2) Dr. Simon’s affidavit creates a genuine of material fact. This Court finds that Aquino’s evidence in support of its motion is legally sufficient to shift the burden to State Farm. This Court determines Dr. Simon’s affidavit erroneously focuses on whether State Farm paid a reasonable amount as opposed to whether Aquino’s charges are reasonable. Dr. Simon’s affidavit also focuses on the reasonableness of State Farm’s payments based an the Medicare Part B Fee Schedule. Under Florida law, PIP insurers “cannot take advantage” of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy. Geico v. Virtual Imaging, 141 So. 3d 147, 160 (Fla. 2013) [38 Fla. L. Weekly S517a]. Thus, Dr. Simon’s affidavit did not satisfy State Farm’s burden. Therefore, the county court’s order granting summary judgment as to reasonableness of Aquino’s charges is affirmed.
With respect to the county court’s entry of partial summary judgment as to the issues of relatedness and medical necessity, State Farm argues that (1) Aquino fails to satisfy its summary judgment burden, and (2) Dr. Aquino’s deposition testimony and Dr. Simon’s affidavit creates a genuine issue of material fact. After a careful review, this Court funds that Aquino’s evidence in support of its motion is legally sufficient to shift the burden to State Farm. Notwithstanding, this Court determines that Dr. Simon’s affidavit creates a genuine issue of material fact as to the relatedness and medical necessity of the services rendered by Aquino, with the exception of the initial consultation. Therefore, the order granting partial summary judgment as to the issues of relatedness and medical necessity is affirmed as to the initial consultation and reversed as to all other services rendered by Aquino.
Accordingly, the final judgment in favor of plaintiff is hereby AFFIRMED IN PART as to the initial consultation and REVERSED IN PART as to all other medical treatment and this cause is remanded for proceedings consistent with this Opinion. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees related to obtaining a partial reversal of the county court’s order granting partial summary judgment on the issues of relatedness and medical necessity, provided that, State Farm is the prevailing party at the conclusion of the underlying case, and, the county court determines that State Farm’s Proposal for Settlement was made in good faith. Aquino’s Motion for Appellate Attorney’s fees is hereby GRANTED, as to the appellate attorney’s fees incurred in (1) defending the county court’s order granting summary judgment on the relatedness and medical necessity of the initial consultation, and (2) defending the county court’s order granting summary judgment on reasonableness, contingent upon Aquino ultimately prevailing in the case. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
