27 Fla. L. Weekly Supp. 433a
Online Reference: FLWSUPP 2705BELLInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not err in applying Daubert standard to determine whether affidavit filed by insurer in opposition to summary judgment is admissible as expert testimony — Insurer’s affidavit regarding reasonableness of charges complied with section 627.736(5)(a) and rule 1.510(e) and was not conclusory — Trial court erred in entering summary judgment in favor of medical provider
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MILLENNIUM RADIOLOGY, LLC, a/a/o Nubia Bello, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-370 AP. L.T. Case No. 2014-17000 SP 23 (04). July 17, 2019. An appeal from a decision by the County Court in and for Miami-Dade County, Alexander Bokor, Judge. Counsel: Michael J. Neimand, for Appellant. Amir Fleischer and David B. Pakula, for Appellee.
Hearing on: May 16, 2019.
(Before JOHN SCHLESINGER, SCOTT BERNSTEIN, and YERY MARRERO, JJ.)
(PER CURIAM.) Roberta Kahana’s affidavit, submitted by the Provider Millennium Radiology, LLC a/a/o Nubia Bello in support of summary judgment, was legally sufficient and satisfied the Provider’s summary judgment burden as to reasonableness. It complied with the mandates of section 627.736(5)(a), Florida Statutes regarding a reasonableness determination involving the Appellee’s charges. It complied with Florida Rule of Civil Procedure 1.510(e), and it is not conclusory.
Additionally, the affidavit of Dr. Dauer, submitted by Insurer United Automobile Insurance Co. in opposition to summary judgment, was legally sufficient and created a genuine issue of material fact as to reasonableness. The affidavit complied with the mandates of section 627.736(5)(a), Florida Statutes regarding a reasonableness determination involving the Insurer’s reimbursement. It also complied with Florida Rule of Civil Procedure 1.510(e), and it is not conclusory.
According to In re: Amendments to the Florida Evidence Code, No. SC19-107, [44 Fla. L. Weekly S170a] issued on May 23, 2019, the standard for expert evidentiary testimony is that found in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (the Daubert standard). As such, the trial court did not err by applying the Daubert standard to determine whether Dr. Dauer’s affidavit is admissible as expert testimony.
However, since we determine that Dr. Dauer’s affidavit satisfied section 627.736(5)(a), Florida Statutes, the Final Judgment entered in favor of Appellee is hereby REVERSED and REMANDED for proceedings consistent with this opinion. The affidavit provided the “iota” or “scintilla” of evidence necessary to survive summary judgment. 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]).
Appellee’s motion for attorney’s fees and costs is DENIED. Appellant’s motion for attorney’s fees and costs is conditionally GRANTED; the trial court is instructed to make a determination thereon pending a favorable outcome on remand for Appellant, and the trial court’s finding that Appellant’s offer for settlement is valid.
