27 Fla. L. Weekly Supp. 13a
Online Reference: FLWSUPP 2701ASTOInsurance — Personal injury protection — Standing — Where complaint was originally filed in name of medical provider’s employer contending that it was doing business as provider, but assignment of benefits was in name of provider only, trial court did not err in allowing amendment of complaint to name only provider as plaintiff — Coverage — Medical expenses — Summary judgment — Trial court did not err in finding that opposing affidavit filed by insurer did not preclude summary judgment in favor of provider on issue of necessity of reading and interpreting x-rays where affiant failed to identify why it was unnecessary to read and interpret x-rays once they had been taken — Additionally, trial court correctly concluded that affidavit did not present genuine issue of material fact on issue of reasonableness of charges where affiant opined that fee schedule amounts were maximum reasonable charges, but insurer did not elect fee schedule method of reimbursement in policy
STATE FARM AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. ROBERTO RIVERA, M.D. a/k/a, ROBERTO RIVERA-MORALES, M.D., a/a/o Juan Asto, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-392 AP 01. L.T. Case No. 13-17861 SP 25. March 12, 2019. An appeal from the County Court for Miami-Dade County. Counsel: Diane H. Tutt, Conroy Simberg, for Appellant. Martin I. Berger, Berger & Hicks, P.A.; and Elliot B. Kula, Kula and Associates, P.A., for Appellee.
(Before JENNIFER D. BAILEY, SPENCER EIG, and VALERIE R. MANNO SCHURR, JJ.)
(MANNO SCHURR, J.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the final summary judgment entered in a personal injury protection (“PIP”) case. Dr. Roberto Rivera-Morales read x-rays taken of Claimant Juan Asto’s back following a car accident. Dr. Rivera-Morales submitted his bill to the insurer, and State Farm paid the bill, buy only in accordance with the Medicare Part B fee schedule, though it had not elected that schedule in its insurance policy. As a result, Dr. Rivera-Morales sued State Farm to recover full payment for the medical services rendered.
Initially, Dr. Rivera-Morales’ employer, A1A Management Services, LLC, (“A1A”) that sued State Farm for the PIP benefits for services rendered to Mr. Asto. A1A contended that it was doing business as Dr. Rivera-Morales. State Farm contended that A1A, despite doing business as Dr. Rivera-Morales, lacked standing to file the lawsuit under that assignment. Dr. Rivera-Morales subsequently moved to amend his complaint from A1A Management doing business as Dr. Rivera-Morales, M.D. to just Dr. Rivera-Morales. The trial court allowed the amendment, and although State Farm challenges that issue on appeal, this Court affirms. See Guadagno, D.C., P.A., a/a/o Patino v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 580a (Fla. 11th Cir. App. Ct. April 12, 2011) (there was no dispute that the correct medical provider was party to the action and since the assignor was an insured of the insurer, there was zero risk that the insurance company would be double-billed for the medical services).
Subsequently, Dr. Rivera-Morales moved for summary judgment on the necessity of his x-ray readings and the reasonableness of the charges for that service. State Farm moved in opposition to the summary judgment motion with the affidavit of Dr. Dauer, but the trial court found that there was no genuine issue of material fact, and granted the Appellee’s motion for summary judgment.
Dr. Dauer’s affidavit failed to identify why it was unnecessary for Dr. Rivera-Morales to read and interpret the x-rays once they had already been provided. Thus, this Court finds that since Dr. Dauer’s affidavit presented no material issue of fact, the trial court was correct in finding for the Appellee. Fuentes v. Sandel, Inc., 189 So. 3d 928 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D753a] (holding that an affidavit filed in opposition to summary judgment did not create a genuine issue of material fact because it simply put forward legal conclusions). We conclude that the trial court was within its discretion in determining that the prescribing, rendering, and interpreting of the x-rays at issue were related to the subject automobile collision and therefore were medically necessary for the care and treatment of Mr. Asto. Dr. Rivera-Morales supported his motion for summary judgment with three affidavits, including one from the treating doctor and two from himself, as the certified radiologist. The Appellee had evidence that State Farm had, in past cases, paid the same amount as he had billed here, and that his charges were comparable to charges billed by other providers in the area. State Farm’s contrary evidence, in the form of the affidavit from Dr. Dauer, was not competent.
Additionally, the fact that State Farm elected to issue payment pursuant to the physician’s fee schedule of Medicare Part B without having previously adopted that payment methodology into its policy was wrong. In Dr. Dauer’s opinion, the maximum reasonable charges that a medical provider may charge for the services rendered to the insured was based on the 80% of the 200% of the relevant Medicare fee schedule; §627.736(5)(a)(2), Fla. Stat. (2009). State Farm had not elected in its policy to use that fee schedule. See Geico General Ins. Co. v. Virtual Imaging Services, Inc. 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. If an insurer fails to elect the use of the permissive fee schedule, then it must use the reasonableness determination available in §627.736(5)(a)(1), Fla. Stat. (2009). Therefore, the trial court correctly concluded that the Dauer affidavit did not present a genuine issue of material fact. While generally the issue of reasonableness is a question for the fact-finder on summary judgment, that is not the case where there are no genuine or material facts presented in opposition. Johnson v. Gulf Life Ins. Co., 429 So. 2d 744 (Fla. 3d DCA 1983).
As such, summary judgment should be affirmed and this case remanded to the trial court for a consideration of attorney’s fees. (EIG, J., concurs.)
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(BAILEY, J.) I respectfully dissent. In order to have standing to bring a cause of action for nonpayment of PIP benefits, the Plaintiff must have an unconditional assignment of benefits from the insured granting the right to bring a cause of action against the insurer. That is not the case here. The underlying lawsuit was filed by A1A Management Services, LLC d/b/a Roberto Rivera-Morales M.D. The claim form which had been submitted to State Farm had both names on it, but only the taxpayer I.D. for A1A. However, the assignment of benefits from patient Juan Asto, which was attached to the complaint, showed assignment only to Roberto Rivera M.D.
State Farm moved to dismiss the complaint because the assignment of benefits indicated that the assignment was only to Roberto Rivera M.D. and not to A1A Management or to Roberto Rivera-Morales, M.D. State Farm contended that A1A Management Services lacked standing to file the lawsuit under that assignment and that a plaintiff must have standing at the inception of the suit. In response, A1A requested leave to amend its complaint to substitute Roberto Rivera, M.D. a/k/a Roberto Rivera-Morales M.D. a/a/o Juan Asto as the plaintiff. State Farm opposed the motion to amend and argued that Dr. Rivera-Morales should have to file a new suit because standing cannot be cured after suit is filed. After the hearing, the trial court granted the motion to amend.
The trial court should have dismissed the lawsuit instead of allowing the plaintiff to amend the complaint. Florida Rule of Civil Procedure 1.260 provides the circumstances wherein a party may be substituted with another. It provides for substitution only in the event of a death of a party, incompetency of a party, transfer of interest, or public officer’s death or separation from office. None of these circumstances apply in this matter. If a plaintiff lacks standing at the outset, the case must be dismissed and it is error to allow it to go forward with that plaintiff or with another named plaintiff. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractor, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b]. Standing is established when the complaint is filed. See, e.g., Jallali v. Christiana Trust, 200 So. 3d 149 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1364a] (a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing); Cruz v. JPMorgan Chase Bank, 199 So. 3d 992 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1412a] (a crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose when the complaint is filed); Nationstar Mortg., LLC, v. Marquez, 180 So. 3d 219 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2790a] (to establish standing to foreclose on a mortgage and note, a plaintiff must demonstrate it is the owner of the note and mortgage and that it acquired such ownership prior to filing the action); Ham, Jr. v. Nationstar Mortgage, LLC, 164 So. 3d 714 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1112a] (standing to foreclose a mortgage must be established at the time of the filing of the foreclosure complaint; a party is not permitted to establish the right to maintain an action retroactively by acquiring standing after the case is filed); Tilus v. Michai, LLC, 161 So. 3d 1284 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D811a] (the plaintiff in a foreclosure action must prove that it had standing to foreclose at the time the lawsuit was filed); Murray v. HSBC Bank USA, 157 So. 3d 355 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D239a] (a crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclosure when the complaint is filed); Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2045b] (standing to foreclose a mortgage loan must be established as of the time of filing the foreclosure complaint); McLean v. JPMorgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D334b] (standing to bring a mortgage foreclosure proceeding may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint). While much of the recent law revolves around foreclosure assignments, standing under an assignment of rights should not be treated differently as a matter of law based on the character of underlying cause of action. Here, the entity which received the assignment is not the entity which sued, resulting in an incurable lack of standing in this case. Summary judgment should be reversed and the case remanded for dismissal.
