26 Fla. L. Weekly Supp. 13a
Online Reference: FLWSUPP 2601GRACInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Trial court did not err in entering summary judgment in favor of medical provider on issue of reasonableness of charges where opposing affidavit filed by insurer, which focused on whether insurer paid reasonable amount rather than whether provider’s charges were reasonable, failed to create genuine issue of material fact — Trial court erred in entering summary judgment in favor of provider on issues of relatedness and necessity of treatment where opposing affidavit did create genuine issue of material fact as to relatedness and necessity
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DR. JOHN CALVANESE, D.C., a/a/o Anne Gracou, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE16-005300 (AP). L.T. Case No. CONO14-003073. November 14, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, John D. Fry, Judge. Counsel: Gregory J. Willis and Daniel M. Schwarz, Cole, Scott & Kissane, P.A., Plantation, for Appellant. Virginia M. Best, Lopez & Best, Miami, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Dr. John Calvanese, D.C. (“Calvanese”). 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, Calvanese sued State Farm for breach of contract for personal injury protection benefits. The trial court entered summary final judgment in favor of Calvanese on the issues of reasonableness, relatedness, and medical necessity. On appeal, State Farm argues that the trial court erred in granting summary judgment in favor of Calvanese on the issues of reasonableness, relatedness and medical necessity because the affidavit of State Farm’s expert, Dr. Bradley Simon (“Dr. Simon”), created a genuine issue of material fact.
“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo.‘ ” Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D194a] (quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]).
With respect to the trial court’s entry of summary judgment as to the reasonableness of Calvanese’s charges, State Farm argues that (1) Calvanese failed to satisfy its summary judgment burden, and (2) Dr. Simon’s affidavit created a genuine issue of material fact. This Court finds Calvanese’s evidence in support of its motion was legally sufficient to shift the burden to State Farm. This Court determines Dr. Simon’s affidavit did not satisfy State Farm’s burden. Dr. Simon’s affidavit erroneously focuses on whether State Farm paid a reasonable amount, based on the Medicare Part B Fee Schedule, as opposed to whether Calvanese’s charges are reasonable. Therefore, the trial court’s order granting summary judgment as to the reasonableness of Calvanese’s charges is affirmed.
With respect to the trial court’s entry of summary judgment as to the issues of relatedness and medical necessity, State Farm argues that Dr. Simon’s affidavit created a genuine issue of material fact. After a careful review, this Court finds Dr. Simon’s affidavit creates a genuine issue of material fact as to the relatedness and medical necessity of the services rendered by Calvanese. Therefore, the order granting summary judgment as to the issues of relatedness and medical necessity is reversed.
Accordingly, the final judgment in favor of Calvanese is hereby REVERSED, and this case is remanded for proceedings consistent with this Opinion. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees related to obtaining a reversal of the order granting summary judgment on the issues of relatedness and medical necessity, provided that State Farm is the prevailing party at the conclusion of the underlying case, and the trial court determines that State Farm’s Proposal for Settlement is enforceable. Calvanese’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees incurred in defending the county court’s order granting summary judgment on reasonableness, contingent upon Calvanese ultimately prevailing in the case. (BIDWILL, RODRIGUEZ and SINGHAL, JJ., concur.)
