25 Fla. L. Weekly Supp. 13a
Online Reference: FLWSUPP 2501SALAInsurance — Personal injury protection — Coverage — Medical expenses — Trial court erred in entering summary judgment in favor of plaintiff on relatedness and necessity of treatment rendered to insured where affidavit submitted by insurer raised genuine issues of material fact
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, v. OAKLAND PARK MRI, INC.(a/a/o Yigal Salazar), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE15014593 (AP). L.T. Case No. COCE13007213 (55). February 28, 2017.
OPINION
Upon consideration of the briefs submitted by the parties, the record, the parties’ respective motions and being otherwise fully advised in the premises, the Court, without oral argument, finds and decides as follows:
State Farm appeals the trial court’s ruling on summary judgment as to the reasonableness of the Plaintiff’s pricing, the necessity of the treatment received by the Insured and its relatedness to his automobile accident. This Court affirms the trial court’s finding of summary judgment in favor of the Plaintiff on the issue of reasonableness of its MRI charges. However, it is the opinion of this Court that the trial court erred in granting summary judgment as to relatedness and necessity.
The Plaintiff asserts that because State Farm made payment to the Insured it waived its right to contest medical necessity or relatedness. This is contrary to Florida Statutes § 627.736, which states:
This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.
§ 627.736(4)(b)6., Fla. Stat.
Further, this Court finds that the affidavit of Dr. Propper raises issues of material fact that would preclude a ruling of summary judgment on the issues of medical necessity and relatedness of the treatment rendered to the Insured by the Plaintiff.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. The trial court’s granting of summary judgment in favor of the Plaintiff regarding the reasonableness of its pricing is AFFIRMED.
2. The trial court’s finding in favor of the Plaintiff regarding the medical necessity and relatedness of the Insured’s treatment and the subsequent Final Judgment dated July 8, 2015, are REVERSED and this cause is REMANDED for further proceedings consistent herewith.
3. State Farm’s motion for appellate attorney’s fees pursuant to Fla. R. App. P. 9.400(a) and Florida Statutes § 768.79 is CONDITIONALLY GRANTED and REMANDED to the trial court for consideration upon the trial court’s determination that its proposal of settlement was valid, enforceable and made in good faith and CONTINGENT UPON State Farm ultimately prevailing in the case.
4. The Plaintiff’s motion for appellate attorney’s fees is GRANTED for the fees incurred related to the affirmance of entry of the summary judgment as to reasonableness of the Plaintiff’s pricing. The amount of appellate fees shall be determined by the trial court on REMAND. (MURPHY, PERLMAN and LEVENSON, JJ., concur.)
