27 Fla. L. Weekly Supp. 125a
Online Reference: FLWSUPP 2702SOUZInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in allowing insurer to survive motion for summary judgment on issue of reasonableness of charges based on purported affidavits that were not properly notarized and in which affiant did not swear to contents of affidavits — Jury verdict reversed and remanded with instructions to enter summary judgment in favor of medical provider
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant/Cross-Appellee, v. ADVANCED X-RAY ANALYSIS, INC. a/a/o GILBERTO SOUZA, Appellee/Cross-Appellant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-318 AP. L.T. Case No. 09-39881 CC 23. April 9, 2019. On appeal from the County Court in and for Miami-Dade County.
(Before DAVID C. MILLER, RODNEY SMITH and CELESTE MUIR, JJ.)OPINION
The case involves a ten-year old unpaid medical bill for services rendered to a State Farm insured in January of 2009 (for injuries arising out of a December 2008 car accident — eleven years ago).
The convoluted procedural history of this case is why we reverse a jury verdict and remand with instructions for the trial court to enter summary judgment in favor of the insured’s medical provider. This case should have ended with summary judgment over three years ago when State Farm failed to come forward with any timely competent evidence to refute the Plaintiff’s summary judgment evidence.
Many times over, the Florida Supreme Court has told us that “[t]he purpose of the no-fault statutory scheme is to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Custer Med. Center(a/a/o Maximo Masis) v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) [35 Fla. L. Weekly S640a], quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; see also Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 393 (Fla. 2013) [38 Fla. L. Weekly S440a] (“Without a doubt, the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment. . .” quoting Ivey, supra): Allstate Ins. Co. v. Kaklamanos, 843 S. 2d 885 (Fla. 2003) [28 Fla. L. Weekly S287a] (“The intent of [section 627.736(4)] is to promote the prompt resolution of PIP claims.”)
Our Third District Court of Appeal coined the phrase “swift and virtually automatic payment” and the Florida Supreme Court has repeatedly echoed this objective throughout the many iterations of the no-fault statute. See Government Employees Ins. Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987)(“Particularly — but not only — in the field of PIP benefits, in which the foundation of the legislative scheme is to provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption . . . an insurance company cannot be permitted simply to stonewall its insured by retaining — and drawing interest upon — payments to which it is admittedly not entitled.”)
Yet, eleven years after an insured was treated for injuries sustained in a car accident, the insured’s medical bill remains unpaid.
Litigation Background
Advanced X-Ray Analysis (AXA) was the plaintiff/assignee in a claim for Personal Injury Protection (PIP) benefits. AXA’s charges for treating State Farm’s insured totaled $1,600.00, which State Farm reduced to $292.58 by utilizing a reimbursement limitation in Sec. 627.736(5)(a)2.f., Fla. Stat. (2008), concededly without having made the required election in its insurance policy to enable it to apply that reimbursement limitation.1
In December of 2009, AXA sued for 80% of its charges ($1,280.00), arguing that State Farm underpaid the insured’s medical bills. After the trial court denied summary judgment in February of 2016, the case was tried to a verdict awarding AXA $400.00, which is one-fourth of its charges.
State Farm appealed the jury verdict and AXA cross-appealed, arguing that it should have been granted summary judgment for 80% of its charges because State Farm came forward with no timely, competent evidence to create any fact question to send to a jury.
State Farm voluntarily dismissed its appeal before filing an initial brief. AXA’s cross-appeal proceeded on its argument that AXA should have been granted summary judgment on the basis that State Farm failed to present any admissible evidence to preclude summary judgment. We agree and reverse because the case never should have reached a jury.2 At the summary judgment stage, State Farm failed to present timely, competent evidence to create any fact issue for a jury to decide. See Diaz v. Casino Café, Inc., 2019 WL 73648 (Fla. 3d DCA Jan. 2, 2019) [44 Fla. L. Weekly D166b]; Pestana v. Palm Springs Gen. Hosp., Inc., 221 So. 3d 764 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1418a]; Sokoloff v. Oceania I Condo. Assn., Inc., 201 So. 3d 664 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D759a].
Summary Judgment
The party moving for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. See Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Once the movant tenders competent evidence, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist “Landers, supra at 370; see also R. Plants, Inc. v. Dome Enters., Inc. 221 So. 3d 752, 754 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1319a] (summary judgment proper where motion included affidavit with damages plaintiff suffered and defendant did not produce counterevidence on the amount of damages).
State Farm Failed to Come Forward With Timely CompetentSummary Judgment Evidence
AXA moved for summary judgment in November of 2015. Trial was set for February 29, 2016. On February 11, 2016, notwithstanding that the case had been pending since December of 2009, State Farm complained that it had not deposed AXA’s corporate representatives over the course of the past seven years.
With the trial date approaching on February 29, 2016, State Farm for the first time on February 12, 2016, in an eleventh hour attempt to avoid summary judgment by filing the affidavit of Nicole Bonaparte, a Certified Professional Coder.
That affidavit was filed with a defective jurat — absent any notary public seal or commission number as required by statute — and was not noticed as being filed in support of summary judgment. See State Farm v. Figler Family Chiro, PA, 189 So. 3d 970 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D805b] (denying review of affirmance of summary judgment where State Farm failed to follow FRCP 1.510(c) by failing to state that its affidavit was filed in opposition to a summary judgment; trial court applied the correct law).
Moreover, the notarial certificate demonstrates that Ms. Bonaparte only “swore” to the fact that she signed the affidavit “freely and voluntarily.”3 An affiant is required to swear to the veracity of the statements made in the affidavit because lain affidavit is by definition a statement in writing under an oath administered by a duly authorized person.” Youngker v. State, 215 So. 2d 318, 321 (Fla. 4th DCA 1968) (citing Black’s Law Dictionary, (4th ed.)). Anything less is not an affidavit. See Placide v. State, 189 So. 2d 810 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D819a] (affirming that affiant signed statement as a “free and voluntary act” is not an affidavit).
State Farm’s second attempt to cure the deficiencies on February 16, 2016, with a “revised” affidavit was to no avail because it contained the same defects. In effect, these were not competent sworn affidavits and we specifically note this notary’s flagrant violation of the statute governing her public office.4 See Fla. Stat. 117.05
A second revised affidavit — untimely filed after the hearing — attempted to finally correct the defective jurat. However, State Farm still failed the Figler requirement because Ms. Bonaparte still failed to swear to the contents of her affidavit.
It should also be noted that State Farm failed to offer any reasonable evidence of any exigent circumstances to explain why State Farm could not obtain Ms. Bonoparte’s affidavit in a timely manner They suggest they were somehow surprised by the impending hearing of the summary judgment motion. However, the motion was filed three months earlier and State Farm filed a Memorandum of Law on the issue of the reasonableness of medical charges five months earlier. Clearly, there was no exigent circumstances.
None of Ms. Bonaparte’s affidavits were sworn affidavits which verified the Contents of the affidavits themselves. The language of the purported jurats alone demonstrates that Ms. Bonaparte only swore that she executed the affidavits “freely and voluntarily for the purposes therein expressed” without mention of the contents therein. Thus, the trial court allowed State Farm to survive summary judgment with virtually no opposing evidence because the purported affidavits were not legally viable affidavits at all.
In short, State Farm failed to file timely competent sworn testimony in the form of an affidavit or otherwise to oppose summary judgment, which should have been granted at the February 22, 2016 summary judgment hearing. See R. Plants, Inc. v. Dome Enter., Inc., 22 So. 3d 752 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1319a]. The trial court abused its discretion in accepting an untimely, unsworn affidavit where no exigent circumstance was provided for the untimeliness. See Coffman Realty v. Tosahatchee Game Preserve, 413 So. 2d 1 (Fla. 1982).5
We need not reach the issue of Ms. Bonaparte’s competency to opine on the reasonableness of medical charges because State Farm failed to refute AXA’s summary judgment evidence. However, we note that several courts have determined that Ms. Bonaparte — a coding expert — is not competent to opine on the reasonableness of medical charges. See e.g. Alicea v. Batmasian, Case No. 502009CA012342XXXXXMB (Fla. 15th Jud. Cir. June 24, 2014) (striking Bonaparte as not qualified to opine on reasonableness of medical charges). Although not dispositive of our ruling because State Farm failed to submit timely competent evidence to preclude summary judgment, this Court finds that Ms. Bonaparte is not more qualified than a “consulting actuary,” whose opinions have been roundly rejected by myriad courts, when it comes to opining on the reasonableness of medical charges. For example, the Fourth District has acknowledged that a proposed “expert’s” opinion may be rejected as such because — like Ms. Bonaparte — the “expert” “has no experience or personal knowledge of the operation of an MRI facility . . . “See State Farm v. Pembroke Pines MRI, Inc. (a/a/o Elias Cruz),171 So. 3d 814, 817 n. 2 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1879a]. Like Mr. Spell in the foregoing case, even if State Farm had submitted a timely, sworn, and property notarized affidavit of Ms. Bonaparte, any such affidavit would not be competent evidence because Ms. Bonaparte is not qualified to opine on the reasonableness of medical charges.
The final judgment in the principal amount of $400.00 is REVERSED and REMANDED with instructions for the trial court to enter judgment in AXA’s favor in the principal amount of $1,024.00, plus applicable interest.
AXA’s motion for appellate attorney’s fees is GRANTED and remanded to the trial court to determine a reasonable attorney’s fee.
__________________
1See Geico v. Virtual Imaging Svcs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].
2The Court rejects State Farm’s suggestion that the denial of summary judgment was “moot” once the case was tried to a jury when the trial court’s error was the denial of summary judgment in the absence of any timely competent evidence to create a fact question to send to the jury. The law required entry of summary judgment in favor of the movant when the non-moving party fails to come forward with any timely competent evidence to preclude summary judgment.
3The Court rejects State Farm’s contention that an unsworn, improperly notarized purported affidavit constitutes a “technical” defect that can be cured at any time. The facts of United Auto. Ins. Co. v. Peter F. Merkle, M.D. P.A., 32 So. 3d 159 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D620a] are distinguishable because Bonaparte’s affidavits suffered from more than mere “technical” defects.
4State Farm acknowledges that notarizing a document in the absence of the affiant “may be an issue for the notary,” who is a secretary in State Farm’s counsel’s office, but argues that such a violation “is not an issue for the affiant.”
5The Court rejects State Farm’s contention that exigent circumstances existed to forgive its late-filed affidavit where the case had been litigated for seven years prior to the denial of summary judgment and State Farm had denied seven years earlier that the charges were reasonable. It’s disingenuous for State Farm to argue that it was somehow ambushed by the summary judgment hearing.
