27 Fla. L. Weekly Supp. 675a

Online Reference: FLWSUPP 2708BEDOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavit of medical provider’s operations manager was not sufficient to sustain provider’s burden on motion for summary judgment on issue of reasonableness of charges where affidavit was conclusory and was not accompanied by documents referenced therein — Even if burden for summary judgment shifted to insurer, trial court erred by rejecting opposing affidavit of adjuster where adjuster was qualified to opine as expert on reasonableness of charges, and her opinions were based on her experience and fee schedules — Fact that adjuster referenced Medicare, HMO and PPO reimbursement rates does not invalidate her opinion — Reversed and remanded

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MIAMI DADE COUNTY MRI CORP, a/a/o John Bedoya, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-277-AP. L.T. Case No. 2013-011952-SP-23. October 17, 2019. An appeal from a decision by the County Court in and for Miami-Dade County, Jason Dimitris, Judge. Counsel: Michael J. Neimand, House Counsel, for Appellant. Kenneth J. Dorchak, Buchalter, Hoffman & Dorchak, P.A.; and Chad A. Barr, Chad A. Barr P.A., for Appellee.

(Before HIRSCH, HERSCH, and BLUMSTEIN, JJ.)

(HERSCH, J.) On July 8, 2013, Appellee, Miami Dade County MRI Corp. filed a complaint against Appellant, United Automobile Insurance Co., for breach of contract for PIP benefits arising from an automobile accident that occurred on September 24, 2008. On October 9, 2013, Appellant filed its answer, denying that said charges for treatment were reasonable. On September 2, 2016, Appellee filed its motion for Final Summary Judgment contending that the charges were reasonable. In support thereof, Appellee filed a portion of the Practice Management Information Corporation’s trade publication Medical Fees in the United States for 2008, Appellant’s responses to interrogatories, and a supplemental affidavit of its Operations Manager, Llina Milian (Milian). More specifically, Milian’s affidavit testified:

That the charge for each service billed by MDCMRI represents the MDCMRI’s usual and customary charge for the services billed to John Bedoya and his/her PIP insurer, which means that this charge is billed to all patients and insurance companies. My job required that I review payments from PIP companies to ensure that proper payment has been received and to do so I would review the explanation of review or explanation of benefits. During my time in this position I would have reviewed hundreds to thousands of explanations of benefits. Proper insurance payment would be payment without reduction of the submitted charges, unless authorized by statute. . . . As a result of my review of these explanations of review I have personal knowledge that for the subject CPT codes payment has been received from PIP insurers without reduction for the year at issue. The charges at issue were set by way of phone calls made to various medical providers in the community who render similar services as well as consultations with medical director, Dr. Robert Elias, M.D., a radiologist and the charges were set in accordance with the recommendations made and within the range of what other medical providers were found to have charged. . . . Insurers that did not amend their policy to clearly elect to pay 200% of Medicare have paid the Plaintiff’s bills at 80% without reductions. For the relevant time period these insurers include, but are not limited to, GEICO, Progressive, 21st Century, Direct, Bristol West, Security National, Farmers Insurance Group, Liberty, Safeco and other PIP insurers who have historically reimbursed the Plaintiff at the rates charged without reduction and continued to do so through 2008 and after.

For example only, with regard to this Defendant as part of claim numbers 0000953712 and 0000958843 and 0100053298, 0100008838 the Defendant paid Plaintiff at the rate of 80% of the amount of $82.39 for CPT code 72070-26 as submitted by the Plaintiff as part of such claim. With regard to this Defendant as part of claim number claim number 0000953712-001-208, 0100053298 as claim number 0100003880, the Defendant issued payment for PIP benefits to the Plaintiff at the rate of 80% of the amount $83.56 for CPT code 72100-26 as submitted by the Plaintiff in said claims.

In opposition, Appellant relied on affidavit by Marcia Lay (Lay), Appellant’s Corporate designee as to Reasonableness who has been adjusting medical claims since 2005 and PIP claims since 2007; based on her training and experience, she has personal knowledge of the claims process. Lay testified that she has reviewed thousands of medical bills submitted as PIP claims and amounts allotted as reimbursement. In determining what a reasonable charge is, Lay uses various state and federal fee schedules applicable to automobile and other insurance coverages to determine reasonableness of charges. Lay testified that she reviewed charges from PIP insurers, Medicare, HMO insurers, Florida’s Worker’s Compensation, Medicaid, and Champus Tri Care to determine the reasonableness of the Appellee’s charges. Lay determined that the Appellee’s charges were greater than the prevailing amount that is reimbursed for said charges. Lay’s opinion was that the charges submitted were unreasonable. The trial court granted Appellee’s motion for summary judgment and Appellant appealed.

The standard of review for a lower court’s order granting summary judgment is de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].

Summary Judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Co. v. Gonzalez, 178 So. 3d 448, 450 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2352a] (citing State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D150b]). To be entitled to summary judgment, Appellee, as the movant, has the burden to identify in its motion those record facts that conclusively prove its claim and disprove Appellant’s claims. See Alfre Marble Corp. v. Twin Stone Designs & Installations, Inc., 44 So. 3d 193, 194 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2057a]. Furthermore, a party moving for summary judgment must present evidence supporting its claim and once it does, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue.” R. Plants, Inc. v. Dome Enters., 221 So. 3d 752, 753-54 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1319a] (citing Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979)). On summary judgment, the court should take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party. See, e.g., Holl v. Talcott, 191 So. 2d 40, 46 (Fla. 1966). At summary judgment, evidence, including expert witness affidavits, should be examined in order to determine whether issues exist, however the evidence should not be weighed and evaluated for a determination of the merits of the affidavit. See Hernandez v. United Auto. Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a]. Additionally, an affidavit in support of summary judgment may not be based on factual or legal conclusions. Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174, 175 (Fla. 3d DCA 1971).

Similarly, pursuant to Florida Rule of Civil Procedure 1.510(e), supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. But conclusory affidavits of a party and its expert are insufficient to create a disputed issue of fact for summary judgment purposes. See Shirey v. State Farm Mut. Auto. Ins. Co., 94 So. 3d 619, 621 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D969a]. The Florida Supreme Court has explained that the conclusions or opinions of an expert witness are inadmissible where the expert based his opinion or conclusion on facts or inferences not supported by the record. See Schindler Elevator Corp. v. Carvalho, 895 So. 2d 1103, 1106 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D226b] (citing Arking Constr. Co. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957)). Further, Florida Rule of Civil Procedure 1.510(c) requires summary judgment motions specifically to identify the summary judgment evidence upon which the movant relies.

In the instant case, Milian’s affidavit stated that the charges were set by way of telephone calls made to various medical providers in the community. As Operations Manager, Milian has personal knowledge of the valuation of the services at issue with the basis of her knowledge coming from her review of hundreds to thousands of explanations of benefits. However, Appellee did not attach any sworn or certified copies of documents referred to in Milian’s affidavit. See Fla. R. Civ. P. 1.510(e). Milian concluded that the charges are usual and customary but does not provide any copies of documents as support. However, Appellee did file portions of Medical Fees in the United States in support of its reasonableness claim but this was not used to set prices nor was it what Milian relied on in her affidavit.

Further, she concluded without proof, that the “subject CPT codes payment has been received from PIP insurers without reduction for the year at issue.” Once again without proof, Milian concluded that “Insurers paid bills at 80% without reduction.” Appellee’s motion identified no record evidence, beyond Medical Fees in the United States and Milian’s affidavit that merely alleges that its charges are usual and customary, and that the Plaintiff has “received payment of these charges without reduction from other PIP insurers, including Defendant.” This conclusory statement is insufficient to sustain Appellee’s burden for summary judgment. See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 980 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D356c] (holding that an affidavit containing “only conclusory statements of ultimate fact [was] insufficient to sustain the movant’s burden of demonstrating the absence of any genuine issue of material fact”). Milian’s conclusions are based on her opinion, and the burden of the Appellee is not simply to show that the facts support its own theory of the case, but rather to demonstrate that the facts show that Appellant cannot prevail. See Mejiah v. Rodriguez, 342 So. 2d 1066, 1067 (Fla. 3d DCA 1977).

If this Court were to accept Appellee’s contention that Milian’s affidavit set forth facts that would be admissible in evidence and that she showed affirmatively that she was competent to testify as to the reasonableness of the charges, then the burden would shift to Appellant. This Court would then have to determine whether Lay would qualify as an expert under Daubert. See White v. Ring Power Corp., 261 So. 3d 689, 696 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2729a] (finding as a threshold, a witness must be “qualified” to render an expert opinion on the issue at hand). Under Daubert, an expert is “qualified” by knowledge, skill, experience, training, or education in order to testify about scientific, technical, or other specialized knowledge. Id. See also § 90.702, Fla. Stat. (2015). A court’s decision to accept or reject expert testimony is reviewed under an abuse of discretion standard. SDI Quarry v. Gateway Estates Park Condo. Ass’n, 249 So. 3d 1287, 1296 (Fla. 1st DCA 2018) [43 Fla. L. Weekly D1423f] (citations omitted). Because the trial court has discretion to determine whether a witness is qualified to express an opinion as an expert, such determination will not be reversed absent a clear showing of error. Davis v. State, 142 So. 3d 867, 872 (Fla. 2014) [39 Fla. L. Weekly S485a] (noting that the qualification of a person as an expert is within the discretion of the trial judge); Brooks v. State, 762 So. 2d 879, 892 (Fla. 2000) [25 Fla. L. Weekly S417a]; see also Hayes Robertson Grp., Inc. v. Cherry, 260 So. 3d 1126, 1130-31 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2752f].

Appellant contends that Lay’s affidavit, in opposition to Appellee’s Motion, created a genuine issue of material fact that precluded entry of summary judgment. Additionally, Appellant argues that the trial court erred by rejecting Lay’s affidavit for failure to meet the requirements of section 90.702, Florida Statutes (2018). Lay’s opinion was based on her experience as a PIP adjuster; her knowledge of reimbursement of cash patients, as well as the Medicare fee schedules, Worker’s Compensation Fee Schedules, and Champus; as well as EOB’s, negotiations, and settlements with PIP providers who submitted their bills to United, and which were paid and accepted at much lower amounts than what was charged above by this provider. Lay’s affidavit was based on her 12 years of experience in the insurance industry “starting in 2005 as a medical claims adjuster for Progressive Insurance Company.” Based on her affidavit, Lay is qualified to opine, as an expert, on the reasonableness of medical charges regarding x-rays and MRIs, utilizing the knowledge and experience that she has gained through her occupation.¹

Appellee contends that Lay’s opinion is insufficient because she made her determination about reasonableness based on a percentage of Medicare reimbursement rates, and because of her references to HMO and PPO rates, which are negotiated contract rates. Most written opinions from the Eleventh Judicial Circuit appellate division have found that Medicare rates are properly considered under section 627.736(5)(a)(1).² Marcia Lay’s references to HMO and PPO rates do not invalidate her opinion. Though Appellee may argue to the trier of fact that such negotiated contract rates should not be given great weight in determining a reasonable fee, such considerations are not proper on summary judgment where evidence should not be evaluated, and a mere scintilla of evidence is sufficient to fend off summary judgment. Furthermore, the trial court weighed and evaluated the merits of Lay’s affidavit instead of examining it to determine whether issues exist. See Hernandez, 730 So. 2d at 345. As such, the trial court abused its discretion when it wrongly rejected Lay’s Affidavit and found that Lay’s opinions “fails to create a bona fide issue of material fact as the affidavit and opinions therein are self-serving, conclusory, devoid of relevant sufficient facts or data. . . .” The trial court encroached on matters that go to the weight of the opinion, which is the province of the jury. See UF Bd. of Trs. v. Stone, 92 So. 3d 264, 272 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1476a] (citing Fla. Dep’t of Transp. v. Armadillo Partners, Inc., 849 So. 2d 279, 288-89 (Fla. 2003) [28 Fla. L. Weekly S349a]).

Next, Appellee contends that there was no methodology upon which Lay relied for concluding that its charge was unreasonable. On the contrary, Lay used federal and state medical fee schedules and “statements of PIP providers in the South Florida area, taking into consideration their typical reimbursements from PIP insurers, [and] cash patients . . . ” as an example of what is reasonable, since other PIP providers who submitted their bills to United were paid and had accepted a much lower amount than what was charged above by this provider. When uncontradicted testimony consists of facts (as distinguished from opinions) and is not illegal, improbable, unreasonable, or contradictory within itself, it should be accepted as proof of the issue. Reid v. Estate of Sonder, 63 So. 3d 7, 15 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D611a]. Furthermore, Lay’s affidavit complies with Rule 1.510(e), as it is not conclusory. Even if the burden shifted to Appellant, which it had not, Lay’s affidavit (interpreted in the light most favorable to Appellant) established the existence of a genuine issue of material fact concerning the reasonableness of the Appellee’s charges in the instant case and therefore, summary judgment should not have been granted.

Accordingly, the Final Judgment and Order Granting Plaintiff’s Motion for Final Summary Judgment as to Reasonableness is hereby REVERSED and this matter is REMANDED. (HIRSCH and BLUMSTEIN, JJ. concur.)

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¹Under Daubert, an expert is “qualified” by knowledge, skill, experience, training, or education in order to testify about scientific, technical, or other specialized knowledge.

²See United Auto. Ins. Co. v. Miami Dade Cty. MRI, Corp., a/a/o Tania Barrios, 27 Fla. L. Weekly Supp. 7a (Fla. 11th Cir. Ct. Mar. 5, 2019); United Auto. Ins. Co. v. Miami Dade Cty. MRI Corp. a/a/o Ana Rojas, 26 Fla. L. Weekly Supp. 865b (Fla. 11th Cir. Ct. January 8, 2019); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Luis A. Aispur, 26 Fla. L. Weekly Supp. 709a (Fla. 11th Cir. Ct. Oct. 30, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Yanai Torres, 26 Fla. L. Weekly Supp. 706a (Fla. 11th Cir. Ct. Oct. 25, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Carmen Arango, 26 Fla. L. Weekly Supp. 617a (Fla. 11th Cir. Ct. Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Sailly Lopez, 26 Fla. L. Weekly Supp. 616a (Fla. 11th Cir. Ct. Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Servs., Inc. a/a/o Jermaine Lewis, 26 Fla. L. Weekly Supp. 551a (Fla. 11th Cir. Ct. Aug. 21, 2018) (Appellant’s affiant, Dr. Propper, attested that most MRI services are reimbursed at the rate of the Medicare Part B Fee schedule and that the rates paid by Appellant were reasonable since they are widely accepted by providers); 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) (Appellee’s affiant compared Appellant’s charges to the Medicare fee schedules); State Farm Fire and Cas. Ins. Co. v. Rivera-Morales a/a/o Dimanche, Case No. 15-341 AP (Fla. 11th Cir. Ct. May 11, 2018); State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D. a/a/o Muselair, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017) holding that the use of Medicare Part B Schedule of fees to conclusively determine a reasonable amount without a clear election was impermissible); State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs., Inc. a/a/o Scott, 25 Fla. L. Weekly Supp. 220a (Fla. 11th Cir. Ct. May 24, 2017); but see United Auto. Ins. Co. v. Miami Dade Cty. MRI Corp., 2016-000450 AP-01 (Fla. 11th Cir. Ct. Mar. 22, 2019); State Farm Auto. Ins. Co. v. Roberto Rivera, MD. a/k/a Roberto Rivera-Morales, M.D. a/a/o Juan Asto, Case No. 16-392 AP 01 (Fla. 11th Cir. Ct. Mar. 12, 2019); United Auto. Ins. Co. v. Miami Dade Cty. MRI Corp., Case No. 15-279 AP (Fla. 11th Cir. Ct. Sept. 26, 2018).