26 Fla. L. Weekly Supp. 936a

Online Reference: FLWSUPP 2612PHILInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — MRI and reading and interpretation of MRI — Civil procedure — Summary judgment — Trial court did not abuse its discretion by refusing to accept insurer’s late-filed affidavit in opposition to motion for summary judgment on issue of reasonableness where insurer was not attempting to correct technical defect in a prior, timely-submitted, affidavit, but was instead attempting to submit entirely new affidavit after deciding not to rely on the earlier affidavit — Relatedness and necessity — Opposing affidavit was legally sufficient and created genuine issue of material fact as to relatedness and necessity of MRI, and the reading of it

STATE FARM FIRE AND CASUALTY, Appellant, v. ROBERTO RIVERO-MORALES, M.D., a/a/o Jameson Philistin, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-442 AP. L.T. Case No. 2012-003556 SP 26. March 26, 2019. On Appeal from the County Court in and for Miami-Dade County. Michaelle Gonzalez-Paulson, Judge. Counsel: Nancy Gregoire, for Appellant. Edward N. Krakauer, for Appellee.

(Before DIANE V. WARD, MARISA TINKLER MENDEZ, CHARLES K. JOHNSON, JJ.)

OPINION

In this personal injury protection case, State Farm’s insured sustained injuries in an automobile collision. Neil Gilwit, D.C. treated the insured, and ordered a cervical MRI. Dr. Rivera-Morales performed the reading and interpretation of the MRI. State Farm paid Dr. Rivera-Morales less than he billed, and Dr. Rivera-Morales sued. Dr. Rivera-Morales moved for summary judgment.

Dr. Rivera-Morales filed an affidavit of Dr. Gilwit as to the medical necessity of the treatment and its relatedness to the underlying accident, while in opposition to necessity and relatedness, State Farm relied on the affidavit of Michael Mathesie, D.C. As to the reasonableness of his fees, Dr. Rivera-Morales relied on his own affidavit, while State Farm initially relied on the affidavit of actuary Darrel Spell as to reasonableness.

After a hearing on summary judgment, the trial court initially denied summary judgment as to relatedness and necessity and reserved ruling on reasonableness pending a Daubert hearing on Mr. Spell’s qualifications. The Daubert hearing was scheduled for April 14, 2016. Prior to the Daubert hearing, State Farm informed Dr. Rivera-Morales and the Court that it would no longer be relying on the Spell affidavit. As such, the Daubert hearing to determine Mr. Spell’s qualifications as an expert never took place.¹

On April 12, 2016, the trial court granted Dr. Rivera-Morales’ motion for summary judgment “as to reasonableness following Defendant’s notice that it will no longer be relying on the opinion of Darrell Spell . . . .” On April 18, 2016, State Farm moved for reconsideration of the summary judgment on reasonableness. In that motion, State Farm stated that “Defendant and its undersigned counsel are in the process of retaining a new expert to opine on the subject of reasonableness with regards to the charges at issue, and will disclose to the court and Plaintiff the subject matter of this expert’s opinion, as well as any other necessary disclosures.” On May 6, 2016, State Farm filed an affidavit of Edward A. Dauer, M.D., as to reasonableness. Then, on May 10, 2016, State Farm filed an amended motion for reconsideration, specifically referencing the Dauer affidavit. On May 11, 2016 the trial court denied the amended motion for consideration.

Later, Dr. Rivera-Morales filed a second motion for summary judgment, regarding relatedness and necessity, and the trial court granted the motion.

State Farm appeals. Although we find that the trial court did not abuse its discretion when it declined to consider State Farm’s late-filed reasonableness affidavit, we reverse because the trial court erred in granting summary judgment on the issues of relatedness and necessity.

The Trial Court’s Decision Not to Considerthe Late-Filed Reasonableness Affidavit

Florida Rule of Civil Procedure 1.510(c) requires that any summary judgment evidence upon which a party relies must be served prior to the summary judgment hearing.² Case law is clear that it is within a trial court’s discretion to refuse late-filed affidavits, and that it is not an abuse of discretion for a trial judge to hold that an affidavit first filed with a motion for rehearing is too late. Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164, 1167 (Fla. 5th DCA 1980) (adopted by the Florida Supreme Court as its own opinion in 413 So. 2d 1 (Fla. 1982)). In the instant case, the Spell affidavit was filed before the summary judgment hearing, but State Farm decided to withdraw its reliance on the Spell affidavit. The Dauer affidavit was not filed before the summary judgment hearing, but instead was filed eight months later, after State Farm decided not to rely on the Spell Affidavit.

It appears that a trial court abuses its discretion in declining to accept a late-filed affidavit when compelling or exigent circumstances exist which would require the acceptance of the affidavit. For example, in AC Holdings v. McCartey, 985 So. 2d 1123 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1412c], the attorney for the defendant had been admitted to the Florida Bar less than a month prior to the filing of the action, and the Court determined that it was clear that his conduct was “totally inadequate.” Id. at 1124. The case involved a foreclosure resulting from a mortgage that required the defendants to obtain $2 million worth of hazard insurance by June 2, 2006. Id. The defendants obtained insurance in the amount of the replacement value of the residence by that deadline, but that amount was less than $2 million. Id. The plaintiffs gave the defendants until June 13, 2006, to obtain the full $2 million in coverage, and the defendants did so before that time. Id. Nonetheless, the plaintiffs brought suit to foreclose for failure to obtain the insurance in time. At the hearing on the motion for summary judgment, counsel for the plaintiffs did not dispute that the defendant had placed insurance coverage on the property with an effective date of June 7, 2006. Id. at 1126. Thus, the appellate court found that, even without the late-filed affidavit, a material issue of fact existed, which was whether there was a breach and whether the breach was material so as to warrant the equitable remedy of foreclosure. Id. The Third DCA determined that compelling or exigent circumstances existed, and concluded that, under the facts of the case, the trial court abused its discretion in rejecting an affidavit that merely explicated the issues that had previously been raised. Id. The Third DCA also noted that in Fernandes v. Boisvert, 659 So. 2d 412, 413 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D1735a], the Second DCA found that a trial court had abused its discretion in “ ‘refusing to rescue Fernandes from the apparent incompetence of her lawyer.’ ”

In the instant case, there are no compelling or exigent circumstances which would have required the trial court to accept the late-filed affidavit. There is no indication that State Farm’s trial attorney was incompetent or inadequate, and there is no indication that Dr. Rivera-Morales made any concession at the hearing on summary judgment that would indicate the presence of a genuine issue of material fact on the issue of reasonableness even without the affidavit. Instead of resulting from compelling or exigent circumstances, the Dauer affidavit was untimely because State Farm decided not to rely on the timely affidavit that it had filed and to rely upon an untimely filed affidavit instead. The fact that State Farm timely filed the Spell affidavit does not save the “replacement” Dauer affidavit from being declined. Once State Farm withdrew its reliance on the Spell affidavit, the same situation existed as if State Farm had not filed any affidavit prior to summary judgment. The Dauer affidavit was simply filed eight months too late. The trial court did not abuse its discretion in refusing to accept the late-filed Dauer affidavit.³

State Farm asserts that the trial court erred, arguing that a litigant faced with summary judgment must be given at least one opportunity to amend. It cites United Automobile Insurance Co. v. Affiliated Healthcare Centers, Inc., 43 So. 3d 127, 130-31 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1934a] for this assertion. In that case, United Auto filed the affidavit of a records custodian which attached a fax cover page which United Auto alleged to have sent, but the fax cover page indicated that it was sent by someone other than the records custodian. Id. at 129. The trial court reasoned that because the person identified in the fax was the only one who had personal knowledge of whether it was sent, the records custodian could not attest to the sending of the fax. Id. The trial court denied United Auto’s request to cure the defect. Id. On appeal, the Third DCA indicated that it was not actually necessary to call the person who prepared the fax for the fax to be admitted into evidence, but that the records custodian was required to attest that the fax was prepared by or made from information transmitted by with knowledge, whose duty it was to transmit notices by fax, and that it was in the ordinary course of business to send such faxes. Id. at 130. United had failed to include such an attestation, but the Third DCA found that “To the extent that the records custodian failed to lay a sufficient foundation for the admission of the fax as a business record in her affidavit, the trial court was required to afford United at least one opportunity to amend the affidavit to correct this technical defect before entering summary judgment.” Id. at 131.

In the instant case, State Farm was not attempting to correct a technical defect in an affidavit, but was instead attempting to submit an entirely new affidavit after deciding on its own not to rely on the affidavit that it had timely submitted. The reasoning of Affiliated Healthcare does not apply.

State Farm’s argument that the trial court denied due process based on State Farm Fire and Casualty v. Lezcano, 22 So. 3d 632, 633 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2105a], in which the trial court failed to conduct a hearing on a motion for summary judgment, is without merit because in this case the trial court conducted a hearing on the motion for summary judgment; it simply declined to accept a late-filed affidavit, which was in its discretion to do.

Relatedness and Necessity

Both sides timely submitted affidavits concerning relatedness and necessity. Our review of those affidavits, and of the trial court’s decision to grant summary judgment as to relatedness and necessity, is de novo. See Blue Star Restoration Inc. v. Citizens Prop. Ins. Corp., 2019 WL 1141215, at *1 (Fla. 3d DCA Mar. 13, 2019) [44 Fla. L. Weekly D700a]; Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 167 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]. We must interpret the affidavits and the other evidence submitted in the light most favorable to State Farm, the non-moving party. See Gonzalez v. Citizens Prop. Ins. Corp., 2019 WL 1141236, at *2 (Fla. 3d DCA Mar. 13, 2019) [44 Fla. L. Weekly D686a]; Rakusin at 167. Evidence should be examined in order to determine whether issues exist, but the evidence should not be weighed and evaluated for a determination of the merits of the affidavits. State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D., a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018). “ ‘If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed.’ ” Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1173 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (citing Piedra v. City of N. Bay Vill., 193 So.3d 48, 51 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1087a]). The existence of a mere “iota” or “scintilla” of evidence in favor of the non-moving party is sufficient to defeat summary judgment. See id. (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]).

Affidavits submitted in support of, or in opposition to, summary judgment must follow the requirements of Florida Rule of Civil Procedure 1.510(e),⁴ and must not be conclusory. State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D., a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018). “However, the evidence offered [in an affidavit] ‘need not be in the exact form, or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial.’ ” Id. (quoting OneWest Bank [v. Jasinski], 173 So. 3d 1009, 1013-14 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1389a]).

Dr. Rivera-Morales submitted the affidavit of Dr. Gilwit as to the necessity of the treatment provided to the insured and its relatedness to the underlying accident. The Gilwit affidavit meets the requirements of Rule 1.510(e), and it is not conclusory. We agree with the trial court that it was sufficient to meet the Provider’s burden as to necessity and relatedness.

Since Dr. Rivera-Morales presented prima facie evidence to show that the charges were related and necessary, the burden then shifted to United.⁵

Dr. Rivera-Morales argues, however, that State Farm waived its argument that the treatment at issue was not related or necessary. He argues that State Farm’s payment of a portion of the amount billed “amounts to a determination by State Farm that the taking of the MRI was related and medically necessary,” so that it is barred from now alleging that it was not related or medically necessary. It also argues that since State Farm paid the entity that performed the MRI, it is barred from challenging the relatedness or necessity of the reading of the MRI. Similar arguments have been rejected by other panels of this Circuit. Those panels determined that since section 627.736(4)(b), Florida Statutes, allows an insurer to assert that a claim is unrelated or not medically necessary, at any time, State Farm is allowed to challenge relatedness or necessity even after payment. Joseph, 26 Fla. L. Weekly Supp. 454a; State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs., Inc. a/a/o Scott, 25 Fla. L. Weekly Supp. 220a (Fla. 11th Cir. Ct. May 24, 2017). We agree with those cases, and reject Dr. Rivera-Morales’ argument that State Farm is barred from alleging that the taking or reading of the MRI in this case was not related or medically necessary.

State Farm submitted the affidavit of Dr. Mathesie as support that the MRI and its reading and interpretation were not related to the insured’s accident or medically necessary. The affidavit meets the requirements of Rule 1.510(e), and it is not conclusory.

Dr. Rivera-Morales attacks the Mathesie Affidavit asserting that State Farm only challenges the reading of the MRI in this case, and therefore its challenge fails because it is self-evident that once an MRI is performed, a radiologist should read it. However, Dr. Mathesie does not only opine that interpreting the MRI was not related or necessary under the circumstances presented, but instead asserts that prescribing, ordering, performing, and interpreting the MRI scans of the cervical spine was not related or necessary. This conclusion was based on his observation that the insured’s level of pain decreasing by the time that the MRI was prescribed, which could mean that the insured was recovering, and is relevant to whether the MRI was necessary; that there were no “red flags” suggesting that a diagnostic test was necessary, and that there was “no radiation of any pain into the extremities proximate to the MRI scan being performed.” Thus, State Farm challenges only the reading of the MRI, but provides evidence that it should not have been performed as well. As such, Dr. Rivera-Morales’ argument is unconvincing. See Joseph, 26 Fla. L. Weekly Supp. 454a.

Finally, citing Banyas v. American Mutual Fire Insurance Co., 359 So. 2d 506 (Fla. 1st DCA 1978), the Provider asserts that where a physician orders diagnostic tests to further diagnose a patient’s condition following an accident, those tests are considered related and necessary medical services to determine whether or not the accident was the cause of the pain. However, Dr. Mathesie’s affidavit states that “The daily records fail to indicate . . . the reason to send the claimant for a cervical MRI scan” and determines that “There were no red flags to order a diagnostic test.” Thus the affidavit includes evidence that the MRI was not done for diagnostic purposes and therefore does not run afoul of Banyas. See Joseph, 26 Fla. L. Weekly Supp. 454a (when an affidavit supported that x-rays were not used diagnostically, the affidavit did not conflict with Banyas.)

The affidavit of Dr. Mathesie was legally sufficient and created a genuine issue of material fact as to the relatedness and necessity of the MRI, and the reading of it. Accordingly, the trial court erred in granting summary judgment as to relatedness and necessity.

Therefore, the trial court’s “Order Granting Plaintiff’s Motion for Summary Judgment Regarding Relation and Medical Necessity and Final Judgment,” is hereby REVERSED. (WARD, and TINKLER MENDEZ, JJ., concur.)

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¹Recently, the Florida Supreme Court rejected the adoption of the Daubert standard, explaining that the standard for admitting expert testimony is procedural rather than substantive, and thus within its purview rather than the legislature’s. Delisle v. Craine Co., 43 Fla. L. Weekly S459a (Fla. Oct. 15, 2018). It determined that the Frye standard, rather than the Daubert standard is the appropriate test to use in Florida courts. This ruling, however, does not affect the Spell affidavit in the instant case, because State Farm withdrew the affidavit before the Daubert hearing could take place.

²Rule 1.510(c) provides, in part:

The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party must identify, by notice served pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or delivered, electronically filed, or sent by e-mail no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or by delivery, electronic filing, or sending by e-mail no later than 5:00 p.m. 2 business days prior to the day of hearing.

³We make no determination as to the merits of the Dauer affidavit.

⁴The Rule provides that:

Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

⁵“The movant for summary judgment bears the initial burden of demonstrating by competent evidence the nonexistence of any question of material fact, and only when the movant has satisfied this burden does the burden shift to the opposing party to come forward with evidence to the contrary.” Spradley v. Stick, 622 So. 2d 610, 611 (Fla. 1st DCA 1993).