26 Fla. L. Weekly Supp. 460a

Online Reference: FLWSUPP 2606MARQNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 129aInsurance — Personal injury protection — Evidence supported denial of insurer’s summary judgment on affirmative defense of accord and satisfaction — Summary judgment in favor of provider on issue of reasonableness of charges was improper where there were genuine issues of material fact

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. GABLES INSURANCE RECOVERY, INC a/a/o Laraine Marques, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-138 AP. L.T. Case No. 2014-002398-SP-24. July 30, 2018. An Appeal from the County Court for Miami-Dade County, Donald J. Canava, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, for Appellant. G. Bart Billbrough, Billbrough & Marks, P.A., for Appellee.

(Before RODRIGUEZ, ZAYAS, and SANTOVENIA, JJ.)

(PER CURIAM.) This is an appeal from a final summary judgment in favor of Appellee Gables Insurance Recovery, Inc. (“GIR”). GIR, the Plaintiff in the trial court, sued Appellant United Automobile Insurance Company (“United Auto”), the Defendant in the trial court, for personal injury protection (“PIP”) insurance benefits. The first issue on appeal is whether the trial court erred in denying United Auto’s motion for summary judgment and granting GIR’s motion for summary judgment on the accord and satisfaction affirmative defense. The second issue on appeal is whether the trial court erred in granting the GIR’s motion for summary judgment on the reasonableness of the charges.

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Menendez v. Palms West Condominium Ass’n, 736 So. 2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a]. See also Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966); Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977). The standard of review of a summary judgment order requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].

As to the first matter on appeal, the record evidence shows that while there is no genuine issue of material fact concerning the accord and satisfaction defense, the evidence supports a denial of United Auto’s summary judgment motion concerning entitlement to use the affirmative defense, and supports granting GIR’s motion for summary judgment precluding use of this affirmative defense. The trial court made very specific factual findings that the language on the checks was not conspicuous. The natural conclusion is that the medical provider and assignee G.I.R. never intended to enter into an accord and satisfaction with United Auto when cashing the checks. See St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454, 456 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a]; Republic Funding Corp. of Fla. v. Juarez, 563 So. 2d 145, 147 (Fla. 5th DCA 1990); Rudy’s Glass Const. Co. v. E. F. Johnson Co., 404 So. 2d 1087, 1089 (Fla. 3d DCA 1981). With respect to this issue, we affirm.

The second matter on appeal concerns whether the trial court erred in granting GIR’s summary judgment as to the issue of reasonableness of the charges. Very often, issues of reasonableness of medical charges are appropriately factual issues to be presented to the finder of fact, rather than those decided as a matter of law. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a] (reversing the decision of the trial court during an action for declaratory judgment that an insurer’s determination of medical bill compensation amounts generated by a computer database were unreasonable across the board, noting that the legislature has not defined the term “reasonable”, and holding that the burden remains on the plaintiff to prove the reasonableness of medical charges to the finder of fact); Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031, 1034 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D734a] (quashing the opinion of a circuit court sitting in an appellate capacity, which had reversed a final judgment after a jury trial verdict and directed the trial court to enter a summary judgment on reasonableness and necessity of the charges); Irwin v. Blake, 589 So. 2d 973, 974 (Fla. 4th DCA 1991) (“However, we conclude the trial court did err in barring appellants from arguing to the jury that appellee’s medical bills were not reasonable and necessary.”).

Based on the conflicting opinions in the affidavits and the evidence in the record in this case, which must be considered in the light most favorable to the non-moving party, there is a genuine issue of material fact regarding whether the charges for the treatment in this case were reasonable. See, e.g., United Auto. Ins. Co. v. Tienna, 780 So. 2d 1010, 1011 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D869a]. We reverse as to this issue.

We AFFIRM the lower court’s denial of United Auto’s motion for summary judgment and the grant of GIR’s motion for summary judgment concerning the accord and satisfaction affirmative defense.

We REVERSE and REMAND the order of the lower court granting GIR’ s summary judgment motion regarding the reasonableness of the charges. Where a final judgment is no longer enforceable in part, an attorney fee award based on that judgment in part is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].

Where a case is affirmed in part and reversed in part, a party may be entitled to a portion of the appellate attorneys’ fees. Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). Since GIR is not the prevailing party in this appeal with respect to summary judgment of reasonableness of the charges, GIR cannot be awarded appellate attorney’s fees with respect to those issues. See § 627.428(1), Fla. Stat. (2018). However, GIR has prevailed on the propriety of the trial court’s grant of summary judgment as to the accord and satisfaction affirmative defense.

We direct the trial court to enter an order conditionally granting appellate attorney’s fees to Gables Insurance Recovery Inc. with respect to the first issue on appeal only, contingent on GIR being the prevailing party at the conclusion of the case. See Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473, 475 n.3 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2252c]; Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). Since United Auto also filed its motion for appellate attorney’s fees, we additionally direct the trial court to enter an order conditionally granting appellate attorney’s fees to United Auto with respect to the second issue on appeal only, contingent on United Auto being the prevailing party at the conclusion of the case.

FOR THESE REASONS, we direct the lower court to vacate the order granting final judgment in favor of Appellee and this cause is REMANDED to the trial court for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part. (RODRIGUEZ, ZAYAS, and SANTOVENIA, JJ. concur.)