25 Fla. L. Weekly Supp. 698b
Online Reference: FLWSUPP 2508HALLInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer did not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit asserts that reimbursement payment was reasonable because it met reimbursement level prescribed by Medicare Part B fee schedule, despite fact that fee schedule is not elected in PIP policy, and does not raise genuine issue of material fact as to reasonableness of charges
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. PLANTATION OPEN MRI, LLC, a/a/o Jessica Hall, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE15-020855 (AP). L.T. Case No. COCE12-006815. September 27, 2017. Appeal from the County Court of the Seventeenth Judicial Circuit, Broward County, Daniel J Kanner, Judge. Counsel: Kenneth P. Hazouri, de Beaubien, Knight, Simmons, Mantzaris, & Neal, LLP, Orlando, Florida, for Appellant. Todd A. Landau, of Todd Landau, P.A., Hallandale Beach, Florida, for Appellee
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Plantation Open MRI, LLC (“Plantation”) on the issue of the reasonableness of charges for medical services rendered to Jessica Hall (the “Insured”). Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and the final judgment is hereby AFFIRMED for the reasons stated below:
In the trial court proceedings below, Plantation filed suit against State Farm to recover personal injury protection benefits, claiming breach of contract pursuant to an assignment of benefits from the Insured. On April 13, 2015, the trial court held a hearing on Plantation’s motion for summary judgment. On October 19, 2015, the trial court entered Final Judgment in favor of Plantation. This Court reviews the trial court’s decision de novo. Moustafa v. Omega Ins. Co., 201 So. 3d 710, 714 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2064a].
Entry of summary judgment “is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Yaralli v. Am. Reprographics Co., LLC, 165 So. 3d 785, 787 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1240a]. Pursuant to section 627.736(5)(a), Florida Statutes, a medical provider “may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered . . . .”§ 627.736(5)(a), Fla. Stat. (emphasis added). To meet its burden at summary judgment, Plantation must have shown that consideration was given to the factors set forth in section 627.736(5)(a), Florida Statutes, to establish that the amount of the disputed charges were reasonable. See id. In support of its motion for summary judgment, Plantation relied on the affidavit of Andrew Byers (the “Byers Affidavit”), the owner and managing member of Plantation. The Byers Affidavit indicates that consideration was “given to evidence of usual and customary charges,” payments accepted by other medical providers, “reimbursement levels in the community,” and “other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply” when setting its charges in 2006. Id. The trial court found that the Byers Affidavit, and supporting documentation, was sufficient for Plantation to meet its initial burden on summary judgment.
To rebut Plantation’s summary judgment evidence, State Farm relied on the affidavit of Dr. Edward Dauer (the “Dauer Affidavit”), a medical doctor. State Farm argued its reimbursement payment to Plantation was reasonable because it met the reimbursement level prescribed by the Medicare Part fee schedule. Although the Fourth District Court of appeal explained that the Medicare Part B fee schedule could be a factor to determine a reasonable charge, the court reiterated that the Medicare Part B fee schedule cannot be used to limit an insurer’s reimbursement without the insurer first electing to do so in its policy as required by the Florida Supreme Court. See also Nw. Ctr. for Integrative Med. & Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 214 So.3d 679, 681-82 (Fla. 4DCA 2017) [42 Fla. L. Weekly D446b] (citing Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]) The summary judgment evidence demonstrates that State Farm failed to elect to limit its reimbursement in the subject policy. See Virtual Imaging Servs., Inc., 141 So. 3d at 159-60; § 627.736(5)(a)1., Fla. Stat. Therefore, the question on summary judgment is not whether the reimbursement amounts the insurer paid are reasonable; instead, the question is whether the medical provider’s charges are reasonable. See § 627.736(5)(a), Fla. Stat. As a result, based on the summary judgment evidence, this Court determines that State Farm failed to raise a genuine issue of material fact as to the reasonableness of Plantation’s charges.
Accordingly, the final judgment in favor of Plantation is AFFIRMED. Further, Plantation’s Motion for Appellate Attorney’s Fees is hereby GRANTED in an amount to be determined by the trial court upon remand. (BIDWILL, RODRIGUEZ, and SINGHAL, JJ., concur.)
