27 Fla. L. Weekly Supp. 903b
Online Reference: FLWSUPP 2710GABLInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Summary judgment — Medical provider is not entitled to summary judgment on affirmative defense that services provided by certified chiropractic physicians’ assistant were not lawfully rendered where provider introduced no evidence that supervising physicians were board certified as required by CCPA laws and regulations
GABLES INSURANCE RECOVERY INC., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2011-016344-SP-25, Section CG02. November 20, 2019. Elijah A. Levitt, Judge. Counsel: Michael A. Rosenberg, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER DENYING PLAINTIFF’S SECOND AMENDEDMOTION FOR PARTIAL SUMMARY JUDGMENT AS TODEFENDANT’S AFFIRMATIVE DEFENSE REGARDINGUNLAWFULLY RENDERED SERVICES
THIS CAUSE having come before the Court on August 19, 2019, on Plaintiff’s Second Amended Motion for Partial Summary Judgment as to Defendant’s Affirmative Defense Regarding Unlawfully Rendered Services, (“Plaintiff’s Motion for Summary Judgment”), and the Court having heard argument of counsel, as well as having reviewed applicable law, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is DENIED for the reasons set forth herein.
BACKGROUND
This case arises out of a motor vehicle accident that occurred in Miami-Dade County on May 11, 2008. The insured sought medical treatment, including physical therapy from the provider, Asclepius Medical Center, Inc. (“Asclepius”), following injuries arising from the subject motor vehicle accident. Asclepius obtained an assignment of benefits under the subject policy and rendered treatment to the insured, which was subsequently billed to Defendant State Farm Mutual Automobile Insurance Company (“State Farm” or “Defendant”). The record evidence shows the insured appeared for an initial evaluation on May 12, 2008, with Dr. Guido Perez, M.D. The record evidence further shows Dr. Perez prescribed diagnostic studies and physical therapy and recommended the insured appear for a chiropractic evaluation. The insured saw Dr. Miguel Cortes, D.C. on May 13, 2008. Dr. Cortes conducted an evaluation of the insured, confirmed the diagnosis rendered by Dr. Perez, and concurred regarding the course of treatment. Physical therapy was subsequently rendered to the insured by a duly licensed Certified Chiropractic Physicians’ Assistant (“CCPA”), Aymara Moreno. It is undisputed all pertinent information pursuant to Florida’s No-Fault Law was timely provided to State Farm in order to process the claim. It is also undisputed State Farm did not make any request for information in accordance to the statute.
Asclepius subsequently assigned its benefits to Plaintiff Gables Insurance Recovery, Inc. (“GIR” or “Plaintiff”). GIR sent a Notice of Intent to Initiate Litigation, to which State Farm responded that it did not believe any other payments were due and owing. In its response, State Farm did not raise an issue regarding the services rendered to the insured. Plaintiff then filed the instant action.
STANDARD OF REVIEW
Florida Rule of Civil Procedure 1.510(c) provides a moving party is entitled to summary judgment if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” On a motion for summary judgment, the moving party bears the burden of proving, through admissible evidence, the non-existence of any genuine issue of material fact. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (Fla. 1965); Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956). If the moving party meets its burden, then the burden shifts to the non-moving party to provide competent admissible evidence sufficient to show a genuine and material issue of fact indeed exists. See Arce v. Wackenhut, 40 So. 3d 813, 815 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1471b].
ANALYSIS
The Court finds that Plaintiff has failed to demonstrate the absence of a genuine issue of material fact regarding Dr. Perez’s and/or Dr. Cortes’s (“the Doctors”) authority to supervise CCPA Moreno. Sections 460.403 and 460.4165, Florida Statutes (2008), and Florida Administrative Code Rule 64B2-18 (2008) have certification requirements for supervising chiropractors of CCPAs. Section 460.403(3) requires “a chiropractic physician or group of physicians certified by the board to supervise such assistant.” Section 460.4165, subsections (a) and (b), require the services to be provided in “the office of the chiropractic physician to whom the certified chiropractic physician’s assistant has been assigned” or at “the supervising chiropractic physician’s address of record required by s. 456.035 . . . of the chiropractic physician to whom she or he is assigned as defined by rule of the board.” Florida Administrative Code Rule 64B2-18.001(04) further provides, “[t]he term ‘supervising physician’ as herein used means any licensed chiropractic physician or group of physicians who is approved and certified by the Board to provide supervision for the certified chiropractic physician’s assistant and/or registered chiropractic assistant, and who assumes legal liability for the services rendered by such assistants.” Thus, the plain language of the CCPA laws and regulations requires Board certification for supervising physicians.
Plaintiff introduced no evidence that the Doctors were authorized by law to supervise a CCPA. The Court reviewed the extensive exhibits, deposition transcripts, and affidavits filed in support of Plaintiff’s Motion for Summary Judgment. Plaintiff’s only evidence in support of its position is Mr. Marcell Betancourt’s affidavit that provides Asclepius is a duly licensed entity that rendered services to the insured in accordance with all pertinent administrative rules and Florida law. This statement is conclusory without any factual support for the Doctors’ Board certifications to supervise, even indirectly, a CCPA. “[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.” 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)). Therefore, Mr. Betancourt’s affidavit is insufficient to prove an absence of material fact on the Doctors’ supervisory certification.
The Court agrees with Plaintiff that the burden of proving an affirmative defense is on the party who asserts that defense. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096-97 (Fla. 2010) [35 Fla. L. Weekly S640a]. Nonetheless, on a motion for summary judgment, the burden does not shift to the opposing party unless and until the moving party demonstrates an absence of material fact. See Arce, 40 So. 3d at 815. Until the affirmative defenses are attacked by sufficient evidence, the opposing party has no obligation to submit affidavits or proof to establish its affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784, 787 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Plaintiff failed to introduce any evidence to establish that the supervisory physician requirements of Sections 460.403 and 460.4165, Florida Statutes (2008), and Florida Administrative Code Rule 64B2-18 (2008) were met. Wherefore, Defendant did not need to present contrary evidence. See William A. Hall, D.C. a/a/o Veronica Del Llano v. Mercury Ins. Co. of Fla., 14 Fla. L. Weekly Supp. 1137b (Fla. 11th Cir. Ct. Oct. 2, 2007) (Plaintiff required to prove Board certification to be entitled to finding of lawfully rendered services under Florida Administrative Code Rule 64B2-18.)
Wherefore, Plaintiff’s Motion for Summary Judgment is denied.
