26 Fla. L. Weekly Supp. 255b

Online Reference: FLWSUPP 2604CADAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable and related treatment — Affidavit in opposition to provider’s motion for summary judgment was sufficient to create genuine issues of fact regarding reasonableness and necessity of x-ray review and interpretation — Trial court erred in entering summary judgment in favor of provider

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. ROBERTO RIVERA-MORALES, M.D., a/a/o Rodrick Thador, Juan Cadavid, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 15-321 AP & 15-322 AP. L.T. Case No. 12-3555 SP 26. June 6, 2018. An appeal from the County Court for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, and Jeffrey L. Baer, Goldstein Law Group, for Appellant. David M. Caldevilla, De La Parte & Gilbert, P.A., and Martin I. Berger and Zachary A. Hicks, Berger & Hicks, P.A., for Appellee.

(Before ESPINOSA DENNIS,¹ EIG, AND HANZMAN, JJ.)

(ESPINOSA DENNIS, Judge.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from a final judgment in favor of Appellee, Dr. Roberto Rivera-Morales, in a case involving PIP benefits. The final judgment was entered following the lower court’s entry of summary judgment in favor of Appellee. For the reasons detailed below, this Court reverses the final judgment as summary judgment in favor of Appellee was improper.

The issue for determination in the lower court was whether the x-ray bills submitted to State Farm were reasonable, related to the subject automobile accident, and necessary. Dr. Rivera-Morales filed a motion for summary judgment attaching supporting affidavits of himself and Dr. Paul Wand, the treating physician. Dr. Wand’s affidavit asserted that Dr. Rivera-Morales’s x-ray review and interpretation were medically necessary and related to the insureds’ accidents, while Dr. Rivera-Morales’s affidavit asserted that his charges for x-ray review and interpretation were reasonable. State Farm opposed summary judgment and filed the affidavit of Dr. Michael Propper, which opined that the x-rays were not medically necessary or related to the accident, and that the amount charged for Dr. Rivera-Morales was not reasonable.

The lower court ultimately entered summary judgment and final judgment in favor of Dr. Rivera-Morales, finding that the Wand and Rivera-Morales affidavits were sufficient, and that the Appellee satisfied his burden as to the issues of whether the bills were reasonable, related, and necessary. In finding in favor of Dr. Rivera-Morales, the lower court also determined that Dr. Propper’s affidavit was not based on sufficient facts or data, was conclusory in nature, and that State Farm failed to establish that Dr. Propper’s opinion was the product of reliable principals. The trial court further found that Medicare reimbursement is not relevant in PIP cases, and, as such, Dr. Propper could not rely on Medicare Fee schedules in making his determination of reasonableness.

Appellate courts use a de novo standard of review in appeals of summary judgment proceedings. Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]. This requires the Court to “consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.” Id. (quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]). It is well established that “summary judgment should be granted only when there is a complete absence of genuine issues of material fact.” Copeland v. Fla. New Invs. Corp., 905 So. 2d 979, 980 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1622b]. State Farm argues that the lower court improperly disregarded Dr. Propper’s affidavit, and, had it considered it appropriately, genuine issues of fact would have precluded entry of summary judgment — we agree.

“[G]eneral statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue” which would bar entry of summary judgment. Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)). Florida Rule of Civil Procedure 1.510(e) governs the basic requirements of affidavits, stating in pertinent part:

[s]upporting 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.

Here, Dr. Propper’s affidavit meets the requirements of Rule 1.510 as it was based on personal knowledge, set forth facts admissible in evidence, and established his competence to testify to the matters contained therein. Further, Dr. Propper’s affidavit should not have been disregarded in whole or in part based upon any issues relating to the applicability of Medicare fee schedules. Dr. Propper’s affidavits were legally sufficient and, interpreted in the light most favorable to State Farm, created a genuine issue of material fact as to reasonableness, relatedness, and necessity. The lower court erred in disregarding Dr. Propper’s affidavit and granting summary judgment in favor of Appellee.

REVERSED and REMANDED. (EIG and HANZMAN, JJ., concur.)

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¹Judge Espinosa Dennis did not participate in oral argument.