27 Fla. L. Weekly Supp. 789a
Online Reference: FLWSUPP 2709MOREInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in entering summary judgment in favor of medical provider on issue of reasonableness of charges where opposing affidavit filed by insurer, which relied on reimbursement schedules and managed care guides, sufficiently raised issue of material fact
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. EXCELLENT HEALTH SERVICES CORP., a/a/o Juana Moreno, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-409 AP 01. L.T. Case No. 2013-02341 SP 25. October 21, 2019. An appeal from a decision by the County Court in and for Miami-Dade County, Gina Beovides, Judge. Hearing on: July 17, 2019. Counsel: Michael J. Neimand, for Appellant. Zachary A. Hicks, Elliot Kula, and William D. Mueller, for Appellee.
(Before DARYL E. TRAWICK, WILLIAM THOMAS, and REEMBERTO DIAZ, JJ.)
(PER CURIAM.) United Automobile Insurance Co. (Appellant/Defendant/Insurer/United) appeals a February 17, 2016 Order Granting Plaintiff’s Motion for Summary Judgment), a November 3, 2017 Order Granting Final Summary Judgment (Final Judgment) in favor of Excellent Health Services Corp. (Appellee/Plaintiff/Provider/Excellent Health Services) (R. at 449-50), and a July 26, 2017 Order denying Appellant’s renewed motion for reconsideration (Motion for Reconsideration). (R. at 444).
On July 29, 2011 Juana Moreno (Moreno) was involved in an automobile accident and allegedly sustained injuries. Appellee obtained an assignment of any PIP benefits available and treated Moreno (R. at 15). Appellee submitted its claim for the medical services provided, but Appellant failed to pay in full (R. at 14).
Appellee sued for the unpaid balance and filed a Motion for Summary Judgment, arguing that the medical services provided were medically necessary and related, and that the fees were reasonable. Appellee’s Motion relied on the affidavit of Dr. Kevin Feig (Dr. Feig), who examined and diagnosed Moreno with cervical strain, thoracic strain, lumbar strain, right shoulder strain, and right wrist and elbow contusions. (R. at 89). Dr. Feig, a medical doctor licensed in Florida, North Carolina, New York, Arizona, and California, and Appellee’s former medical director, opined that the recommended treatment included a course of therapy which included but was not limited to x-rays, hot/cold packs, electrical stimulation, ultrasound, therapeutic exercises, massage therapy, trigger point therapy, myofascial release, home exercises, and passive/active stretching exercises. Dr. Feig treated Moreno from August 3 through September 8, 2011, and testified in his affidavit that Moreno’s treatment, “within a reasonable degree of medical certainty, . . . was reasonably priced, medically necessary, and related to the injuries that she sustained in her July 28, 2011 automobile collision.” (R. at 90). Dr. Feig’s affidavit also supported the reasonableness of appellee’s bills; he testified that he is familiar with the “usual and customary charges” of the medical services rendered and that the charges were “usual and customary in Miami-Dade County, Florida.” (R. at 90).
Appellant opposed Appellee’s Motion and filed an affidavit from Dr. Peter Millheiser (Dr. Millheiser) which denied the reasonableness of appellee’s charges. The trial court found that Dr. Millheiser’s affidavit was not specific enough. (R. at 385). The Appellant requested that it be allowed to file a more specific affidavit. The trial court denied the request. Following these denials, the Appellant abandoned its defense concerning necessity and relatedness. The trial court entered Final Judgment in favor of Provider.
Appellant timely appealed.
Appellant filed a Motion for Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400, section 768.79, Florida Statutes (the Offer of Judgment Statute), and section 59.46, Florida Statutes.
Appellee filed a Motion for Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400(b), section 627.428, Florida Statutes, and section 627.736(8), Florida Statutes.
STANDARD OF REVIEW
The standard of review of an order granting summary judgment is de novo. Shands v. City of Marathon, 261 So. 3d 750 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D164a]. Both the trial court and the appellate court must interpret the affidavits and the other evidence submitted by the parties in the light most favorable to the non-moving party. Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]. “ ‘If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed.’ ” Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1173 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (quoting Piedra v. City of N. Bay Vill., 193 So. 3d 48, 51 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D1087a]).
In doing so, a court may not adjudge the credibility of the witnesses nor weigh the evidence, since on summary judgment the court is only to determine the admissibility of the evidence, not its persuasiveness. See Univ. of Fla. Bd. of Trustees v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1476a]; Hernandez v. United Auto Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a]. In other words, at summary judgment, evidence, including expert witness affidavits, should be examined in order to determine whether issues exist, but the evidence should not be weighed and evaluated for a determination of the merits of the affidavits.
State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018) (Ullah). Thus, a mere “iota” or “scintilla” of evidence is sufficient to preclude the entry of summary judgment. See Ortega, 257 So. 3d at 1172 (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]).
STANDARD FOR REVIEW OF AFFIDAVITS
The standard for reviewing affidavits was discussed in the Joseph appellate opinion:
Affidavits submitted in support of, or in opposition to, summary judgment must follow the requirements of Florida Rule of Civil Procedure 1.510(e), which provides:
[s]upporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
“[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)). However, the evidence offered “need not be in the exact form, or cover all the preliminaries, predicates, and details which would be required of a witness, particularly an expert witness, if he were on the stand at trial.” OneWest Bank, 173 So. 3d at 1013-14 [OneWest Bank, FSB v. Jasinski, 173 So. 3d 1009 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1389a]] (quoting Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966)).
State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, MD., a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018) (Joseph).
On a motion for summary judgment, a movant’s affidavit cannot be conclusory in law or fact. See, e.g., Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981) (general statements, contained in an affidavit in support of motion for summary judgment and which are framed in terms only of conclusions of law, do not satisfy movant’s burden of establishing the nonexistence of a genuine issue of material fact).
Pursuant to these standards, Dr. Feig’s affidavit concerning the reasonableness of the medical bills was sufficient. As such, the Provider met its prima facie case regarding the reasonableness of its charges.
However, Dr. Millheiser’s affidavit, submitted by the Insurer, sets forth a proper statutory basis on which his opinion regarding reasonableness is generated. He “consult[ed] and evaluate[d] various reimbursement schedules of payors, reviewed various managed care guides, Medicare and Medicaid reimbursement schedules and Worker’s Compensation reimbursement, reviewed several years of work of insurance carriers, as well as reimbursement schedules of various insurance carriers who have printed reimbursement documentation. . . . [C]onsideration must be given to the reimbursement and or payment rates as opposed to the amount billed. . . . The majority of payors of medical services are general health insurers, PIP insurers, and various subsidized insurance programs such as Medicare, Medicaid and Worker’s Compensation. As such, they collectively and effectively establish the reimbursement rates in the community.” (R. at 167).
He then compares the rates charged to the various rates that he used as a comparative basis, and the rates charged were higher than all of them. Consequently, he opines, concerning specific CPT codes, that those charges are “not reasonable charges for the year billed.” (Emphasis in original). (R. at 168).
The trial court should not have rejected Dr. Millheiser’s affidavit. It sufficiently raised an issue of material fact.
The affidavit of the Provider sufficiently sets forth facts to support entry of summary judgment concerning the reasonableness of the bill in question; similarly, the Insurer’s affidavit sufficiently sets forth facts in opposition. Summary Judgment was improperly granted for the Provider on this record.
As such, this matter is:
REVERSED and REMANDED for proceedings consistent with this Opinion.
Appellant’s motion for appellate attorney’s fees is conditionally GRANTED.
