26 Fla. L. Weekly Supp. 617a
Online Reference: FLWSUPP 2608ARANInsurance — Personal injury protection — Medical expenses — Reasonableness of charges — Summary judgment was improper where parties provided competing, legally sufficient affidavits establishing a genuine issue of material fact — Insurer’s affidavit did not impermissibly rely on Medicare Part B schedule of fees — Consideration of Medicare Part B schedule of fees is a permissible factor to be considered under section 627.736(5)(a)(1), and insurer was not seeking to limit reimbursement under 627.736(5)(a)2
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. GABLES INSURANCE RECOVERY, INC. a/a/o Carmen Arango, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-123 AP. L.T. Case No. 11 2711 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., Fort Lauderdale, for Appellant. G. Bart Billbrough, Billbrough & Marks, P.A., Coral Gables, for Appellee.
(Before LOPEZ, ARECES, and DE LA O, JJ.)
(PER CURIAM.) This is an appeal by the insurer, State Farm Mutual Automobile Insurance 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.
We find that the affidavits submitted by Appellant and Gables Insurance Recovery, Inc. a/a/o Carmen Arango (“Appellee”) create genuine issues of material fact which preclude entry of summary judgment, especially where Appellant may rely on the factors set out in section 627.736(5)(a)(l), Florida Statutes (2008), which include the Medicare Part B schedule of fees.
Carmen Arango (“Insured/Arango”) was involved in a motor vehicle accident, suffered injuries, and received medical treatment from All X Ray Diagnostic Services Corp. (“X Ray”). X Ray submitted a claim for Arango’s medical treatment, and Appellant paid reasonable charges after it reduced X Ray’s charges pursuant to the Medicare Part B schedule of fees. To collect on the unpaid balance, X Ray retained Appellee; Appellant failed to pay and suit ensued.
The issue before us is the reasonableness of X-Ray’s fees under section 627.736(5)(a)(1), Florida Statutes (2008), which 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). The Florida Supreme Court in Geico General Insurance Co. v. Virtual Imaging Services, 141 So. 3d 147, 155-56 (Fla. 2013) [38 Fla. L. Weekly S517a], found that reasonableness is a fact-dependent inquiry determined by consideration of various factors. Appellee moved for summary judgment on this matter.
In support of the motion for summary judgment, Appellee relied on the bill submitted and Sabino Ferro’s (“Ferro”) affidavit. Ferro, X Ray’s owner and corporate representative, 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 introduced the affidavit of Michael Propper, M.D. (“Propper”), and reasoned that reliance on the enumerated factors in section 627.736(5)(a)(1), which included the Medicare Part B schedule of fees was permitted. Propper, a Medical Doctor in Orthopedic Surgery and licensed in the State of Florida, asserted familiarity with medical reimbursements personally received and with those in the community. Propper noted that Medicare Part B reimbursement is the “benchmark” used to determine whether a charge is reasonable since adopted as the base level of reimbursement by most insurance companies. Propper attested to his personal experience and/or knowledge and discussed personal pricing strategy, Medicare Part B, and pricing of other insurance companies in South Florida.
The county court found that Appellee had demonstrated through competent admissible evidence that the charges were reasonable and that Appellant had failed to show the existence of any genuine issue of material fact, and granted Final Judgment. 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). However, when a record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. See Dellatorre v. Buca, 211 So. 3d 272, 273 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D289c].
The law is clear; section 627.736, Florida Statutes (2008) notes several factors that may be considered when determining the reasonableness of a provider’s medical charges. See Virtual Imaging Servs., 141 So. 3d at 149. Additionally, the Florida Supreme Court in Allstate Insurance Co. v. Orthopedic Specialists, 212 So. 3d 973, 976-77 (Fla. 2017) [42 Fla. L. Weekly S38a] noted two different payment methodologies. The first, under section 627.736(5)(a)(1), Florida Statutes (2008), provides that reasonableness is a fact-dependent inquiry determined by consideration of various factors; the other is under section 627.736(5)(a)2., Florida Statutes (2008), where a provider may limit their reimbursement to 80 percent of a schedule maximum charges as provided by the statute. The latter requires that the insured make a clear and unambiguous selection of such limitation.
Here, Appellant contends that consideration of the Medicare Part B schedule of fees is one of the permissible factors as noted in Geico and Orthopedic that “reasonableness is a fact dependent inquiry determined by consideration of various factors” under section 627.736(5)(a)(1), Florida Statutes (2008). There is no indication that Appellant sought to limit its reimbursement, rather Appellant contended that the method of reimbursement selected falls within one of those factors. We agree and find that Summary Judgment should not have been granted since legally sufficient, competing affidavits were provided which established a genuine issue of material fact.
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 Attorney’s fees and costs, and GRANT Appellant’s Motion for Attorney’s fees and costs, subject to the tenets of section 768.79, Florida Statutes, the offer of judgment statute.
