25 Fla. L. Weekly Supp. 307
aOnline Reference: FLWSUPP 2504ORDOInsurance — Personal injury protection — Trial court did not err in entering summary disposition in favor of medical provider on issue of reasonableness of charges where provider’s evidence was legally sufficient to shift burden to insurer, affidavit of insurer’s actuary was properly stricken, and affidavit of claims adjuster did not create triable issue — Trial court erred in entering summary disposition in favor of provider on issue of medical necessity of treatment where adjuster’s affidavit created triable issue regarding necessity
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MARGATE PAIN AND REHABILITATION, INC., a/a/o Nancy Kayala Ordonez, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE 14-014110 (AP). L.T. Case No. COCE 13-012298. May 23, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Robert W. Lee, Judge. Counsel: Gregory J. Willis and Daniel M. Schwarz, Cole Scott & Kissane, Fort Lauderdale, for Appellant. Majid Voussoughi, Majid Voussoughi, P.A., Miami, and Stuart L. Koenigsberg, A Able Advocates, Miami, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Margate Pain and Rehabilitation, Inc. (“Margate”) and an order denying State Farm’s motion to vacate and/or amend the final judgment. 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 reversed as set forth below.
In the underlying case, Margate sued State Farm for breach of contract for personal injury protection benefits. Margate filed a motion for summary disposition. To support the reasonableness of its charges, Margate filed the affidavit of Craig Dempsey, its records custodian and the chief compliance officer of Margate’s parent corporation. To support the relatedness and necessity of the treatment, Margate filed the affidavit of Dr. Michael C. White, the chiropractic physician who rendered the treatment in question. In opposition to Margate’s motion for summary disposition, State Farm relied on the affidavits of: (1) an actuary, Darrell Spell (“Spell”); (2) the State Farm claims adjuster, Shannon Welch (“Welch”); and (3) Dr. Brett E. Weinstein (“Weinstein”). Margate moved to strike Spell as an expert witness. The county court entered an order striking Spell. After a hearing, the county court granted in part and denied in part Margate’s motion for summary disposition. Subsequently, Margate requested the entry of a final judgment as to the part of its claim adjudicated by summary disposition and abandoned the remainder of its claim. The trial court entered final judgment in favor of Margate. State Farm filed a motion for rehearing of the order on the motion for summary disposition. The county court denied the motion for rehearing. State Farm then filed a motion to vacate and/or amend final judgment. After a hearing, the county court denied State Farm’s motion to vacate. This appeal followed.
State Farm argues that the trial court erred in granting summary disposition as to the reasonableness of Margate’s charges. State Farm asserts that (1) Margate did not satisfy its summary disposition burden; (2) Spell’s affidavit should not have been rejected; and (3) Welch’s affidavit created a triable issue. This Court determines that Margate’s evidence in support of its motion is legally sufficient to shift the burden to State Farm. See § 627.736(5)(a)1., Fla. Stat. (listing factors that may be considered in determining reasonableness of a charge); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711, 714 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1400f] (describing legally sufficient affidavits); Derius v. Allstate, 723 So. 2d 271, 274 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a] (holding that a medical provider may establish reasonableness of charge without expert testimony). In addition, Spell’s affidavit was properly rejected and Welch’s affidavit did not create a triable issue. See 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] (commenting on the circuit court’s determination that Spell, as an actuary who works with insurance companies to evaluate the expected costs of medical services and establish premium rates, is not competent to render an opinion on the ultimate question of reasonableness of MRI service charges); United Auto. Ins. Co. v. Hallandale Open MRI, LLC, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Jud. Cir. Ct. Dec. 11, 2013) (finding that the adjuster lacked sufficient personal knowledge to render an opinion as to the reasonableness of the charge for the subject medical procedure because the adjuster had never worked for an MRI provider, had no knowledge of what hospitals or MRI providers in Broward County charge for MRIs and had never provided any billing or accounting services to MRI providers). Therefore, the trial court did not err in its ruling as to the reasonableness of Margate’s charges.
State Farm also argues that the trial court erred in granting summary disposition as to the necessity of the services rendered by Margate. State Farm asserts that Weinstein’s affidavit creates a triable issue as to the medical necessity of the initial consultation, brief physical evaluations and follow-up examination. After a careful review, this Court finds that Margate’s evidence in support of its motion is legally sufficient to shift the burden to State Farm. See Enterprise Leasing Co., 15 So. 3d at 714. Notwithstanding, this Court agrees that Weinstein’s affidavit creates a triable issue as to the medical necessity of the services rendered by Margate. Weinstein’s affidavit satisfies the three prong test. See Id. In addition, Weinstein states the bases for his determination that the services rendered were not medically necessary. Therefore, the trial court erred in its ruling as to the medical necessity of the services rendered by Margate.
Accordingly, the final judgment in favor of Margate is hereby REVERSED and this cause is remanded for proceedings consistent with this Opinion. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED conditioned upon State Farm being the prevailing party at the conclusion of the underlying case, and, a determination that State Farm’s Proposal for Settlement is valid and enforceable. Margate’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees incurred in defending the trial court’s ruling on the reasonableness of its charges, conditioned upon Margate ultimately prevailing in the underlying case. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
