26 Fla. L. Weekly Supp. 616a
Online Reference: FLWSUPP 2608LOPEInsurance — Personal injury protection — Medical expenses — Reasonableness of charges — Trial court erred in concluding that insurer’s affidavit concerning reasonableness of fees was legally incompetent to create genuine issue of material fact where affiant qualified as expert, attested to his experience regarding the treatment of automobile accidents and the associated costs and reimbursements, and did not improperly rely on Medicare Part B schedule of fees
STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. GABLES INSURANCE RECOVERY, INC. a/a/o Saily Lopez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-006 AP. L.T. Case No. 13 03475 SP (26). August 21, 2018. An appeal from the County Court in and for Miami-Dade County, Lawrence King, Judge. Counsel: Nancy W. Gregoire, Birnbaum Lippman & Gregoire, PLLC., for Appellant. G. Bart Billbrough, Billbrough & Marks, P.A., for Appellee.
(Before LOPEZ, ARECES, and DE LA O, JJ.)
(PER CURIAM.) This is an appeal by the insurer, State Farm Fire & Casualty Company (“Appellant”), from a Final Judgment (“Final Judgment”). Having carefully reviewed the briefs, the record, and the applicable law, we REVERSE and REMAND the case for further proceedings.
Sally Lopez (“Insured/Lopez”) was involved in a motor vehicle accident in June of 2010, was injured, and received medical treatment from All X Ray Diagnostic Services Corp. (“X Ray”). X Ray submitted its claim to Appellant for Lopez’s medical services. Appellant paid at a reduced rate pursuant to the Medicare schedule of fees.1 X Ray retained Gables Insurance Recovery, Inc. (“Appellee”) to collect in the unpaid balance.
Appellee moved for summary judgment on the issue of the reasonableness of the fees, arguing Appellant’s impermissible reliance on the Medicare schedule of fees, and in support filed Lopez’s bills and an affidavit by Sabina Ferro (“Ferro”), X Ray’s owner and corporate representative. Ferro’s affidavit attested to having personal knowledge of X Ray’s bills, which are comparable to the range and rate of other providers in the area that do not exceed the usual and customary charges for like services, and that take into account all regulatory, licensing, and commercial concerns otherwise recognized and permitted by the American Medical Association.
In opposition, Appellant filed an affidavit by Dr. Edward Dauer (“Dauer”) a Board Certified Radiologist, licensed in the State of Florida since 1976. Dauer’s affidavit supported Appellant’s claim regarding the rate of reimbursement pursuant to the Medicare Part B schedule of fees.
Based on his knowledge, skill, experience, training, and education, Dauer attested to treating numerous patients injured in automobile accidents, evaluating medical records and bills, and owning and operating several diagnostic centers where he received medical reimbursement equivalent to those in the community, specifically Miami-Dade and Broward Counties.
Dauer noted that general adoption by most insurance companies of the Medicare Part B schedule of fees when calculating reimbursement of PIP claims is the “gold standard” and considered reasonable.
Although both parties argued against the admissibility and conclusory nature of their affidavits, the county court found that Appellee had met its burden on summary judgment and found Appellant’s affidavit “legally incompetent to create a genuine issue of material fact,” we disagree.
The standard of review when reviewing a trial court’s entry of a final summary judgment is de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Co. v. Gonzalez, 178 So. 3d 448, 450 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2352a] (citing State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D150b]). Summary judgment considers the evidence contained in the record, such as the pleadings, depositions, answers to interrogatories, any supporting affidavits, in the light most favorable to the non-moving party. Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a]; see also Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
This Court, sitting in its appellate capacity, considered a virtually identical argument to the one presented here in State Farm Mutual Automobile Insurance Co. v. Gables Insurance Recovery Inc. (a/a/o Yanisley Mesa);(a/a/o Roberto Martin), 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017) (“Mesa/Martin”).
Appellant in Mesa/Martin, opposing appellee’s motion for summary judgment regarding the reasonableness of the medical provider’s fee, introduced an affidavit by Mr. Spell (“Spell”). Spell attested among other things to his educational background, his experience in the medical field as a consulting actuary to Blue Cross/Blue Shield, corporations like Ford, life insurance companies; state insurance departments, and the U.S. Department of Health and Human Services. The county court ruled in favor of appellee, and found appellant’s affiant noncompliant with section 90.702, Florida Statutes (2008), and its reliance on the Medicare Part B schedule of fees impermissible.
The appellate court reversed and remanded the county court’s ruling, and noted that Spell’s affidavit created an issue of material fact that precluded entry of summary judgment. Importantly, the appellate court found that a party may rely on the factors set out in section 627.736(5)(a)1., Florida Statutes (2008), but cannot use the Medicare Part B fee schedule to conclusively determine the reasonableness of the fees absent a clear election in appellant’s policy to the limitations outlined in section 627.736(5)(a)2.f., Florida Statutes (2008). Mesa/Martin, 25 Fla. L. Weekly Supp. 857a.
Guided by Mesa/Martin and having reviewed supporting and opposing affidavits, we find that Appellant and Appellee’s affidavits are legally sufficient and create a genuine issue of material fact that precludes disposal of the matter via summary judgment. Accordingly, the Final Judgment entered in favor of Appellee is hereby REVERSED and REMANDED for proceedings consistent with this opinion. We DENY Appellee’s Motion for Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.40, sections 627.736 and 627.428, Florida Statutes (2008).
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1Section 627.736(5)(a)1., Florida Statutes (2008), provides in pertinent part:
With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
(Emphasis added).
