26 Fla. L. Weekly Supp. 709a
Online Reference: FLWSUPP 2609AISPInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit in opposition to summary judgment, coupled with statutory fee schedules, was sufficient to raise genuine issue of material fact on issue of reasonableness of charge
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. GABLES INSURANCE RECOVERY, INC., a/a/o Luis A. Aispur, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2016-000156-AP-01. L.T. Case No. 2013-003310-SP-26. October 30, 2018. On appeal from the County Court of Miami-Dade County, Florida, Judge Gloria Gonzalez-Meyer. Counsel: Nancy Gregoire, Birnbaum, Lippman & Gregoire, PLLC and Ryan Smith for Appellant. G. Bart Billbrough, Billbrough & Marks, P. A. and Ashley C. Pollan, for Appellee.
(Before HIRSCH, DIAZ, and BLUMSTEIN, JJ.)
(PER CURIAM.) Because we find there are genuine issues of material fact regarding reasonableness of the charge for the x-ray treatment at issue, we REVERSE the lower court’s granting of summary judgment in favor of Gables Insurance Recovery, Inc. (“GIR”), and in doing so, also REVERSE the entry of the final judgment.
GIR rendered services to Mr. Luis A. Aispur on March 28, 2016. GIR, Mr. Aispur’s assignee, submitted invoices to State Farm Mutual Automobile Insurance Company (“State Farm”). State Farm reimbursed a partial amount. GIR filed for summary judgment after State Farm refused payment of an amount other than what had already been reimbursed.
In support of its Motion for Summary Judgment, GIR submitted two affidavits; one, the affidavit of the physician who treated Mr. Aispur; and two, the affidavit of Edian Rodriguez — a senior corporate officer of the assignee. The trial court found that Mr. Rodriguez’s Affidavit shifted GIR’s initial burden of showing the reasonableness of the charge for treating Mr. Aispur to State Farm.
In opposition to the Motion for Summary Judgment, State Farm submitted the affidavit of Dr. Michael S. Proper (“Dr. Proper”). State Farm also submitted Medicare and Medicaid Fee schedules to oppose GIR’s Motion for Summary Judgment. The trial court found that Dr. Proper’s Affidavit did not meet the standards for expert testimony and could not properly be considered as creating a genuine issue of material fact. The trial court erroneously categorized Dr. Proper’s Affidavit. Dr. Proper has a wealth of experience practicing and managing medical centers, and properly reviewed documents such as Medicare and Medicaid Fee schedules to determine that the assignee’s charge for services to Mr. Aispur was not reasonable. Accordingly, the trial court should have concluded that Dr. Proper’s Affidavit was based on his knowledge of the charges and reimbursement rates, managerial experience, first-hand knowledge, contracted rates and Medicare and Medicaid Fee schedules. In sum, Dr. Proper’s Affidavit does not rely on impermissible personal opinion.
Recognizing that State Farm may use Medicare and Medicaid Fee schedules to calculate reasonableness, the Fee schedules, coupled with Dr. Proper’s Affidavit, raised a genuine issue of material fact sufficient to preclude summary judgment.
This matter is REMANDED to the trial court for further proceedings in accordance with this opinion.
