26 Fla. L. Weekly Supp. 865b

Online Reference: FLWSUPP 2611ROJANOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 349bInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavit in opposition to motion for summary judgment filed by insurer was legally sufficient where it was premised upon personal knowledge and reflected admissible evidence that insurer based its payment on Medicare fee schedule — Trial court abused its discretion in striking the affidavit and granting summary judgment in favor of provider

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI DADE COUNTY MRI CORP., a/a/o Ana Rojas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-000292-AP-01. L.T. Case No. 2013-011975-SP-23. January 8, 2019. On Appeal from the County Court for Miami-Dade County, Florida, Judge Spencer Multack. Counsel: Michael J. Neimand, for Appellant(s). Kenneth J. Dorchack and Chad A. Barr, for Appellee(s).

Motion for Rehearing DENIED. (5-7-19)

(Before: JUDGE DENNIS MURPHY, JUDGE MIGNA SANCHEZ-LLORENS, and JUDGE BRONWYN MILLER, JJ.)OPINION

(SANCHEZ-LLORENS, M., Judge.) The issues on appeal are whether a material issue of fact existed regarding the reasonableness of the medical provider’s charge, hence, precluding the entry of summary judgment and whether the trial court properly dispensed with the insurer’s accord and satisfaction defense. We find no error with regard to the accord and satisfaction ruling. However, for the reasons set forth below, we reverse the summary judgment.

In support of its motion for summary judgment, the medical provider, Miami Dade County MRI Corp., filed the affidavit of Llina Milian, its operations manager, opining that the charges were reasonable for services rendered following an automobile accident. In opposition, United Automobile Insurance Company filed the affidavit of John O’Hara III, its litigation adjuster, which stated that United Auto relied on the Medicare fee schedule to pay the claim. The trial court struck the affidavit filed by United Auto under the belief that the Medicare fee schedule was not “admissible to prove reasonableness.”

Florida Rule of Civil Procedure 1.510(e) sets out the requirement that affidavits, supporting and opposing motions for summary judgment, must be made on personal knowledge, state admissible facts and affirmatively show that the affiant is competent to testify as to the matters in the affidavit. The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Pawlik v. Barnett Bank of Columbia Cnty., 528 So. 2d 965, 966 (Fla. 1st DCA 1988) (internal citations omitted). In the instant case, the trial court found O’Hara’s affidavit to be legally insufficient, as it determined that reliance on the Medicare fee schedule was misplaced.

In determining whether a provider’s charge for a particular service 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,’ ” as well as “[v]arious federal and state medical fee schedules’ ” and “[o]ther information relevant to the reasonableness of the reimbursement.’ ” Geico Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147, 155 (Fla. 2013) [38 Fla. L. Weekly S517a] (quoting § 627.736(5)(a), Fla. Stat. (2008)). “[P]ursuant to subsection (5)(a)1 of the PIP statute, reasonableness is a fact-dependent inquiry determined by consideration of various factors.” Geico Gen. Ins. Co., 141 So. 3d at 155-56. Specifically:

Subsection (5)(a)2 of the [PIP] statute, however, provides an alternative mechanism for determining reasonableness: by reference to the Medicare fee schedules. This provision, adopted in the 2008 amendments, states that an insurer “may limit reimbursement” for certain services rendered, such as MRIs, to “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.”

Id. at 156 (citing § 627.736(5)(a)2.f., Fla. Stat.). In the instant case, the affidavit filed by United Auto opposing the summary judgment was legally sufficient, as it was premised upon personal knowledge and reflected admissible evidence that United Auto based its payment on the Medicare fee schedule. Thus, the trial court abused its discretion in striking the affidavit and granting summary judgment in favor of the provider. See State Farm Mut. Auto. Ins. Co. v. Roberto Rivero-Morales, MD a/a/o Jaime Santofimio, 26 Fla. L. Weekly Supp. 553a (Fla. 11th Cir. Ct. Aug. 22, 2018); see also State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Carmen Arango, FLWSUPP 2608ARAN (Fla. 11th Cir. Ct. Aug. 21, 2018) [26 Fla. L. Weekly Supp. 617a]; State Farm Mut. Auto. Ins. Co. v. Pan Diagnostic Servs., Inc. d/b/a Wide Open MRI (a/a/o Jermaine Lewis), 26 Fla. L. Weekly Supp. 551a (Fla. 11th Cir. Ct. Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Roberto Rivero-Morales, MD (a/a/o Syed Ullah), 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018); State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. (a/a/o Rodrick Thador, Juan Cadavid), 26 Fla. L. Weekly Supp. 255b (Fla. 11th Cir. Ct. June 6, 2018); State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC. d/b/a Roberto Rivera-Morales, M.D. (a/a/o Farano Muselaire), 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. (a/a/o Yanisley Mesa; a/a/o Robert Martin), 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017); State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs. Inc. (a/a/o Karlene Scott), 25 Fla L. Weekly Supp. 220a (Fla. 11th Cir. Ct. May 24, 2017); State Farm Ins. v. Sunset Chiropractic and Wellness (a/a/o Alexander Sanchez), 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. Jan 24, 2017).

Accordingly, we REVERSE the order granting summary judgment and REMAND for further proceedings. (MILLER and MURPHY, JJ., concur).