25 Fla. L. Weekly Supp. 5a

Online Reference: FLWSUPP 2501BARRInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Error to enter final summary judgment in favor of provider of issue of reasonableness of charges where affidavits in support of motion were conclusory and contradictory — Insurer’s motion for appellate attorney’s fees granted, pending favorable outcome at trial on remand

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. FLORIDA WELLNESS & REHABILITATION CENTER, INC. (a/a/o Pedro Barrios), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-386 AP. L.T. Case No. 12-12074 SP25. Opinion Filed April 25, 2017. An appeal of a decision by the County Court in and for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Luis N. Perez and Nancy W. Gregoire, for Appellant. Armando A. Brana and Marlene S. Reiss, for Appellee.

[Lower court order published at 22 Fla. L. Weekly Supp. 627a.]

(Before: BAILEY, TRAWICK, and DIAZ, JJ.)

(TRAWICK, J.) State Farm Mutual Automobile Insurance [State Farm] appeals a final judgment on the basis that the trial court improperly granted summary judgment for Florida Wellness and Rehabilitation Center [Florida Wellness] as to whether Pedro Barrios’ medical care charges were reasonable. We agree and therefore reverse and remand this case for further proceedings. We also deny Florida Wellness’ motion for attorney fees and grant State Farm’s motion for the same contingent on the outcome of trial on remand.

DISCUSSION

“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. Thus, our standard of review is de novo.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. “In reviewing a summary judgment, this Court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.’ ” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a] (internal citation omitted). Case law also requires courts to “take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party.” Swift Indep. Packing Co. v. Basic Food Intern., Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984); State Farm Mut. Auto. Ins. Co. v. St. Jude Rehab. Ctr., 22 Fla. L. Weekly Supp. 52c (Fla. 11th Cir. Ct. 2014).

Here, Florida Wellness supported its summary judgment motion with two affidavits from Roy Canizares, D.C., but it is unclear whether Florida Wellness is presenting Canizares as a lay or expert witness. There are also contradictions between these affidavits. In his first affidavit (filed July 25, 2012), Canizares stated 1) he only reviewed the insured’s records, 2) Karim Habayeb, D.C., treated the insured, and 3) his fees were reasonable. However, in his second affidavit (filed over a year later), Canizares said he treated the insured. At summary judgment, parties may not submit documents that “baldly repudiate” their previously submitted sworn statement. See Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954).

Moreover, in both affidavits, Carnizares simply states that Florida Wellness’ charges of $8,627.22 were reasonable without explaining how this number was calculated from its total bill of $13,670, or how it meets the community’s customary practices. The affidavits are thus conclusory, and such “statements alone are insufficient to support the grant of motion for summary judgment.” Bahadue v. Sanaullah, 946 So. 2d 1247, 1248 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D329a]. Trial courts should also exercise caution when granting summary judgment on the medical charges’ reasonableness because reasonableness “is generally a factual issue ripe for determination by a jury.” State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017).

Accordingly, because Florida Wellness did not satisfy its summary judgment burden,¹ we REVERSE the order below and REMAND this case for further proceedings. (BAILEY, J., concurs. DIAZ, J., dissents with written opinion.)

MOTIONS FOR ATTORNEY’S FEES & COSTS

Both parties moved for attorney’s fees and costs under Florida Appellate Procedure Rule 9.400, which authorizes the prevailing appellate party to recover these expenses. The statutory basis for State Farm’s motion is section 768.79, Florida Statutes, and Florida Wellness relies on section 627.428(1). Given the above holding, Florida Wellness’ motion is DENIED, and State Farm’s motion, pending a favorable outcome at trial on remand, is GRANTED. See USAA Cas. Ins. Co. v. Am. MRI, LLC, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. 2012).

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¹We consequently need not address the sufficiency of Darrell Spell’s affidavit, which State Farm submitted in response to Florida Wellness’ summary judgment motion, but it is noted that many courts have rejected this document. See, e.g., State Farm Mut. Auto. Ins. Co. v. Pembroke Pines MRI, Inc., 171 So. 3d 814, 817 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1879a]; State Farm v. Fla. Wellness & Rehab. Ctr., Inc., CACE13-22796 (Fla. 17th Cir. June 3, 2015); State Farm Mut. Auto. Ins. Co. v. New Smyrna Imaging LLC, 22 Fla. L. Weekly Supp. 508a (Fla. 7th Cir. 2014); Pembroke Pines Physicians Assocs. v. State Farm, 21 Fla. L. Weekly Supp. 703a (Fla. Broward Cty. Ct. 2014).

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(DIAZ, J., DISSENTING.) A prima facie showing of reasonableness can be established by merely presenting the medical bills with testimony that services were provided to the patient. See A.J. v. State, 677 So. 2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] (“A medical bill constitutes the provider’s opinion of a reasonable charge for the services.”); Iowa Mutual Nat’l Ins. Co. v. Worthy, 447 So. 2d 988, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So. 2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Ins. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Ct. 2004). Alternatively,

A plaintiff may . . . present lay testimony from a fact witness with first-hand knowledge as to why the charge for the service was set at the rate at which it was billed. A plaintiff may [also], but is not required to, produce an expert witness to establish the reasonableness of its charges.

Nat’l Nuclear Ctr., Inc. v. State Farm Mutual Auto. Ins. Co., Case No. 13-15590 (Fla. Broward Cty. Ct. Apr. 7, 2017) (citing Sea World of Florida, Inc., v. Ace American Ins. Co., 28 So. 3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So. 2d at 937-38; East West Karate Ass’n v. Riquelme, 638 So. 2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Ins. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Ct. 2001)). Here, the Canizares affidavits cross this threshold for Florida Wellness, and for the reasons stated in footnote one’s cited cases, the Spell Affidavit failed to rebut this prima facie showing of reasonableness for State Farm. I, therefore, respectfully dissent and would affirm the judgment under review.