27 Fla. L. Weekly Supp. 225c

Online Reference: FLWSUPP 2703JRODNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 501aInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer was sufficient to preclude summary judgment in favor of medical provider on issue of reasonableness of charges — Affidavit was not conclusory and provided sufficient evidence to survive summary judgment

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MIAMI DADE COUNTY MRI, CORP. a/a/o Javier Rodriguez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-453 AP. L.T. Case No. 12-18070 SP 23. May 8, 2019. On Appeal from the County Court in and for Miami-Dade County, Myriam Lehr, Judge. Counsel: Michael J. Neimand, for Appellant. Virginia M. Best and Johanna M. Menendez, for Appellee.

SUBSTITUTED OPINION AT FLWSUPP 2706JROD

(Before PEDRO P. ECHARTE, JR., ALBERTO MILIAN, and MONICA GORDO, JJ.)

OPINION

(GORDO, J.) When considering motions for summary judgment, trial and appellate courts must interpret affidavits and other evidence in the light most favorable to the non-moving party, and may only grant summary judgment if no genuine issue of material fact exists. See del Pino Allen v. Santelises, 3D18-1896, 2019 WL 942960, at *1 (Fla. 3d DCA Feb. 27, 2019) [44 Fla. L. Weekly D591a]; Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]. A mere “iota” or “scintilla” of evidence in the non-moving party’s favor is sufficient to preclude the entry of summary judgment. See Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1172 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]). The trial court determined that the affidavit of Appellant’s expert, Dr. Edward Dauer, M.D., the only evidence submitted in opposition to summary judgment, was insufficient, so it granted summary judgment. On de novo review,¹ we interpret Dr. Dauer’s affidavit in the light most favorable to Appellant, the non-moving party, and determine that it constitutes sufficient evidence to create a genuine issue of material fact, and to survive summary judgment. Accordingly, we reverse.

Javier Rodriguez sustained injuries as a result of a motor vehicle accident, and sought treatment with the Appellee, Miami Dade County MRI, Corp. (Provider). The Provider billed Mr. Rodriguez’s PIP insurer, United Automobile Insurance Company (United). United paid less than the billed amount, and the Provider sued for the difference between what was billed and what was paid. United stipulated to the relatedness and necessity of the medical services provided, but disputed that the charges were reasonable. The Provider moved for summary judgment, and the parties submitted competing affidavits as to the reasonableness of the charges. The trial court found that the Provider’s affidavit was sufficient, but that United’s was not. It granted summary judgment and final judgment in favor of the Provider. We agree that the Provider’s affidavit was sufficient, but determine that United’s affidavit was sufficient as well.

Affidavits in support of, or in opposition to, summary judgment must meet the requirements of Florida Rule of Civil Procedure 1.510(e), and they must not be conclusory. “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.’ ” State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018) (quoting OneWest Bank, FSB v. Jasinski, 173 So. 3d 1009, 1013-14 [40 Fla. L. Weekly D1389a]).

United relied on an affidavit of Dr. Dauer. The Provider argues that Dr. Dauer’s affidavit “is conclusory as it simply states that the Plaintiff’s charges are excessive and unreasonable, and solely relies upon his charges to support said proposition.” But, to the contrary, rather than relying solely on his own charges, Dr. Dauer states in his affidavit that he has “discussed reimbursement rates with [his] peers and colleagues, which include but are not limited to physicians who work in diagnostic centers in Miami-Dade and Broward Counties as well as physicians who have owned and operated their own diagnostic centers in both counties.” He further states that these physicians’ “experience of charges and reimbursement rates in the community is consistent with the experience I have detailed” in the affidavit. He also describes his own experience. He states that “[i]n my professional practice as a medical doctor over the last 38 years, I have treated patients injured in automobile accidents and reviewed and evaluated medical records and bills for patients who were injured in automobile accidents and received medical treatments and diagnostic tests.” He asserts that he has “over 30 contracts with both private, managed care, and government insurance companies and am familiar with reasonable reimbursement rates for both professional and technical fees based on my experience of providing and paying for these services for 32 years.” Based on his knowledge and experience, he concludes that the charges are not reasonable. Dr. Dauer’s affidavit is not conclusory, because his affidavit explains how his knowledge and experience, including decades of practicing as a medical doctor and reviewing bills for patients who were injured in automobile accidents, backed up by discussions with his peers and colleagues, provides him with knowledge regarding the reasonableness of fees for services like the ones at issue in this case. Interpreting Dr. Dauer’s affidavit in the light most favorable to United, the non-moving party, it provides the “iota” or “scintilla” of evidence necessary to survive summary judgment.

The trial court erred in granting summary judgment as to reasonableness. Accordingly, the summary judgment and final judgment entered below are hereby REVERSED. (ECHARTE and MILIAN, JJ., concur.)

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¹Appellate courts review a trial court’s ruling on a motion for summary judgment de novo. Shands v. City of Marathon, 261 So. 3d 750 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D164a].