27 Fla. L. Weekly Supp. 934a

Online Reference: FLWSUPP 2711MUNOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in rejecting affidavit of insurer filed in opposition to medical provider’s motion for summary judgment on issue of reasonableness of charges on basis that affidavit referred to Medicare and workers’ compensation fee schedules and HMO and PPO rates — Affidavit that was not conclusory, indicated source of affiant’s knowledge, contained evidence pertinent to statutory reasonableness factors, and was supported by exhibits was legally sufficient — Motion for summary judgment should have been denied

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI-DADE COUNTY MRI, CORP., a/a/o Beisy Munoz, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-170 AP 01. L.T. Case No. 12-14168 SP 23 (01). December 31, 2019. On Appeal from the County Court for Miami-Dade County. Myriam Lehr, Judge. Counsel: Michael J. Neimand, House Counsel, United Automobile Insurance Company, for Appellant. Kenneth J. Dorchak of Buchalter, Hoffman & Dorchak, P.A., and Chad A. Barr and Heather M. Kolinsky, Law Office of Chad A. Barr, P.A., for Appellee.

(Before SCOTT M. BERNSTEIN, DARYL E. TRAWICK, and CARLOS LOPEZ, JJ.)

(TRAWICK, J.) The Appellant, United Automobile Insurance Company (“Insurer”), appeals the Final Summary Judgment entered in favor of Appellee, Miami-Dade County MRI, Corp. (“Provider”), as the assignee of Beisy Munoz (“Insured”) in a suit to collect Personal Injury Protection (“PIP”) benefits. This appeal seeks review of the trial court’s order granting Final Summary Judgment in favor of the Provider where the parties filed conflicting affidavits regarding the reasonableness of the amount charged for X-rays. Here, the amount charged for X-rays was approximately $3,148.77.

The standard of review applicable to summary judgment is de novo, and requires the appellate court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a]. It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).

Summary Judgment cannot be granted “if the evidence is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues.” Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper and must be denied. Milgram v. Allstate Ins. Co., Inc., 731 So. 2d 134, 135 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1069a]. In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence. Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a].

In a lawsuit seeking benefits under the PIP statute, reasonableness, like necessity and relatedness, is an essential element of a plaintiff’s case and is decided by factfinders on a case by case basis, depending on the specific evidence introduced at trial and the arguments of counsel. Derius v. Allstate Indem. Co., 723 So. 2d 271, 274 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].

Section 627.736(5)(a)(1), Florida Statutes (2009-2012), provides the following guidance to determine whether a charge for treatment is reasonable:

“[w]ith respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may, be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”

(Emphasis added).

The issue in dispute here is the trial court’s summary judgment decision on the issue of reasonableness of the Provider’s bill. In support of Provider’s Motion for Summary Judgment, Provider filed an affidavit of its billing manager Llina Milian which generally stated that the charges were reasonable because the amounts charged were its usual and customary charges for which it has received reimbursement from PIP insurers without reduction. In opposition to the Provider’s motion for summary judgment, the Insurer filed the affidavit of its litigation adjuster and corporate representative, John A. O’Hara III (Adjuster) which challenges the reasonableness of the charges. Specifically, the issue before this Appellate Court is whether Mr. O’Hara’s affidavit, along with other documents filed by the parties, proved the existence of genuine issues of material fact regarding the reasonableness of the Provider’s bill (as determined according to the PIP statute), and whether the trial court applied the correct rule of law in making its decision.

In addition to the affidavit referenced above, the Insurer also filed the following documents in opposition to the motion for summary judgment: 1) The Deposition Transcript of John O’Hara, 2) CMS.gov search results for Physician Fee Schedules pertaining to the subject CPT codes and Miami locality showing a price range substantially lower than what was billed in the subject case. 3) The Florida Worker’s Compensation Health Care Provider Reimbursement Manual also showing a price range substantially lower than what was charged in the subject bill, 4) a memorandum of law in opposition to summary judgment, and 5) the insurance policy. The memorandum of law contained several legal and factual arguments. Among them, it averred that the average health insurance reimbursements are at approximately 140% of Medicare and that from discovery, it learned that the Provider has received and willingly accepted reimbursements as low as $22.85 from HMO and PPO insurers and reimbursements from some PIP insurers (including USAA and Ocean Harbor) at 80% of 200% of the Medicare Part B fee schedules.

The Insurer clearly submitted evidence concerning the following factors that may be considered by the trier of fact in the determination of reasonableness pursuant to the PIP statute, section 627.736(5)(a)(1) Florida Statutes (2009-2012): reimbursement levels in the community and federal and state medical fee schedules applicable to automobile and other insurance coverage. The affidavit of its adjuster compared the amounts billed by the Provider with the range of reimbursement levels in the community and pertinent fee schedules including Medicare and Worker’s Compensation charts which were incorporated into and attached to her affidavit as exhibits.

Pursuant to Section 627.736(5)(a)(1) of the PIP statute, which, as noted, allows consideration of “various federal and state medical fee schedules applicable to automobile and other insurance coverages” (emphasis added), we find that when determining the reasonableness of a particular charge, the trier of fact may consider evidence pertaining to Medicare and Worker’s Compensation fee schedules. Medicare Part B Fee Schedules are fee schedules clearly applicable to automobile insurance coverage because they are incorporated into the PIP insurance statute and form a statutory basis upon which various PIP claims must be paid.¹ Thus, Medicare Fee Schedules may be considered by the trier of fact to determine the reasonableness of a provider’s bill. Accordingly, it was error for the trial court to find that Medicare fee schedules cannot be utilized in a reasonableness determination. See, e.g., United Auto. Ins. Co. v. Miami Dade Cty. MRI, Corp., a/a/o Miguel Garcia Pagan, Case No. 17-264 AP (Fla. 11th Cir. Ct. Sept. 23, 2019) [27 Fla. L. Weekly Supp. 677a]; United Auto. Ins. Co. v. Miami Dade Cty. MRI, Corp., a/a/o Tania Barrios, Case No. 15-431 AP (Fla. 11th Cir. Ct. Mar. 5, 2019) [27 Fla. L. Weekly Supp. 7a]; 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. Jan. 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. Roberto Rivera-Morales, M.D., a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018). We find that the Medicare fee schedules and other fee schedules submitted by the Insurer are relevant to the consideration of reasonableness under the 627.736(5)(a)(1) methodology, and that O’Hara’s affidavit should not be rejected for referring to them. Accordingly, we find that the trial court improperly rejected the adjuster’s affidavit on that basis.

Furthermore, the trial court found that negotiated contract rates, including HMO and PPO rates, are not relevant to determine the reasonableness of a medical bill. However, section 627.736(5)(a) allows the consideration of “information relevant to the reasonableness of the reimbursement,” to determine whether a charge is reasonable. See Ullah, 26 Fla. L. Weekly Supp. 469a. We find that evidence regarding HMO, PPO, and other such negotiated contract rates are relevant to the reasonableness determination and such evidence constitutes a statutory element that may be considered to determine the reasonableness of a medical bill in a PIP case. See Shands Jacksonville Medical Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 213 So. 3d 372, 376 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1447a] (in a dispute about a different subsection of the PIP statue, stating that discovery about “negotiated reimbursement rates,” which was sought by the insurer in order to determine if the amounts billed by a provider were reasonable, were not the type of documents allowed under the applicable subsection, but “may very well be relevant and discoverable in the context of litigation over the issue of reasonableness of charges instituted pursuant to subsection (5)(a) . . . .”); see also Hialeah Med. Assocs., Inc. a/a/o Coto v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 868b (Fla. 11th Cir. Ct. May 2, 2014) (“insurers can consider charges derived from public sector programs and managed care plans, in addition to the customary billed-charges of private providers.”).

When determining whether expert testimony is admissible, a court “must not conflate” the question of admissibility with the weight of the proffered testimony. Rosenfeld v. Oceania Cruises, Inc., 654 F. 3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a]. It is not the court’s role to “make ultimate conclusions as to the persuasiveness of the proffered evidence.” Id. Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking the substance of expert testimony.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). Accordingly, by rejecting the use of HMO and PPO rates, the trial court may have improperly weighed the evidence in ruling on the motion for summary judgment.

In making its summary judgment decision below, and in consideration of the Insurer’s constitutional challenge against the Daubert admissibility standard for expert opinion evidence, the trial court did not ultimately apply Daubert to reject O’Hara’s affidavit. Rather, the trial court considered the context of the affidavit, while making an erroneous legal determination that the affidavit was legally insufficient and conclusory. The standard for reviewing affidavits for the purpose of summary judgment was discussed in the Joseph opinion issued from this Court last year:

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.” One West Bank, 173 So. 3d at 1013-14 [One West 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, M.D., a/a/o Joseph, 26 Fla. L. Weekly Supp. 454a (Fla. 11th Cir. Ct. July 17, 2018).

In applying this standard to the affidavit under consideration in the instant case, we find that the claims adjuster’s affidavit is legally sufficient. The O’Hara affidavit complies with the requirements of Rule 1.510(e) of the Florida Rules of Civil Procedure. O’Hara’s affidavit is not conclusory because his affidavit indicates the source of his knowledge and contains supporting facts and reasoning. See Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415, 418 (Fla. 1st DCA 2013) [38 Fla. L. Weekly D2245a]. The affidavit contains evidence pertinent to the statutory factors that may be considered in the determination of reasonableness. The affidavit was also supported by exhibits consisting of documents and data that may be considered by the trier of fact to determine the reasonableness of the Provider’s bill.

Upon a thorough review of the record and the subject affidavit, we find that the claims adjuster, John O’Hara III, is qualified to address the topic of reasonableness. We find that his affidavit is legally sufficient, is not conclusory, and is not invalidated by his prior deposition testimony. We find that his references to Medicare, Worker’s Compensation, HMO, and PPO reimbursement rates are relevant to the issue of reasonableness, pursuant to section 627.736(5)(a)(1), Florida Statutes (2009-2012), and do not invalidate his affidavit.

The trial court found that the claims adjuster’s affidavit conflicted with his previously tendered deposition where he admitted that he had not reviewed particular documentation relevant to the reasonableness of the Provider’s bill. However, the affidavit was filed approximately a year or more after the deposition was taken, and thus it is reasonably possible that the adjuster reviewed the subject discovery documents subsequent to the deposition, but prior to his affidavit. This alleged contradictory testimony is not sufficient to preclude his entire affidavit/testimony, especially where the court must view the evidence in the light most favorable to the non-moving party. In comparison, a review of the Provider’s witness affidavit and depositions also present some inconsistencies and discrepancies. It is suggested that such inconsistencies go to the weight of the evidence and the credibility of the witnesses.

Moreover, each party’s affidavit contained conclusory statements and self-serving legal conclusions. Despite this, each affidavit also alleged relevant facts to be considered in the determination of reasonableness pursuant to the PIP statute. These conflicting affidavits indicate the existence of a genuine issue of material fact that must be determined by the trier of fact with regard to the reasonableness of the provider’s bill.

In reviewing the evidence and the motion for summary judgment de novo and in the light most favorable to the nonmoving party, we find that the Provider’s Motion for Summary Judgment should have been denied. We further find that John O’Hara III’s affidavit, along with other evidence in the record, create a genuine issue of material fact regarding the reasonableness issue. At the very least, it is sufficient to suggest the possible existence of a genuine issue of material fact by providing the “iota” or “scintilla” of evidence necessary to withstand summary judgment.² Accordingly, this case is REVERSED and REMANDED for proceedings consistent with this opinion.

MOTIONS FOR APPELLATE ATTORNEY’S FEES

Both parties moved for appellate attorney’s fees and costs pursuant to Florida Appellate Procedure Rule 9.400, which authorizes the prevailing party on appeal to recover these expenses. The statutory basis for Appellant/Insurer’s motion is section 768.79, Florida Statutes, while Appellee/Provider relies on section 627.428(1). Given the above holding, Appellee’s motion is DENIEDand Appellant’s conditionally GRANTED pending a favorable outcome at trial on remand.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; APPELLANT’S MOTIONS FOR ATTORNEY FEES CONDITIONALLY GRANTED; APPELLEE’S MOTIONS FOR SAME DENIED. (BERNSTEIN J., concurs. LOPEZ, J., dissents, with written opinion.)

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¹Black’s Law Dictionary defines “applicable,” in part, as “[c]apable of being applied . . . .” Black’s Law Dictionary (10th ed. 2010) at 120. Since the Medicare Fee schedules are capable of being applied to determine reasonableness and are incorporated into the PIP statute, it then logically follows that Medicare fee schedules are applicable to PIP coverage.

²Ortega v. Citizens Property 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]).

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(LOPEZ, J., dissenting) The standard of review regarding the admission or rejection of evidence is that of abuse of discretion. Bunin v. Matrixx Initiative, Inc., 197 So.2d 1109 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]; State Farm Mutual Automobile Insurance Company v. CC Chiropractic, LLC, 245 So. 3d 755 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D583a]. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or where no reasonable man would take view adopted by trial court; however, if reasonable men could differ as to propriety of action taken by trial court, then it cannot be said that trial court abused its discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) In the proceedings below the Appellee argued and the Court agreed that the affidavit of John O’Hara was devoid of admissible facts and was conclusory and did not constitute admissible evidence. I agree with the trial court.

The record before the trial revealed Mr. O’Hara and the other adjusters for the Appellant do not make reasonableness determinations on a case by case basis but instead are required to follow a company directive to reduce all medical charges to 200% of Medicare Part B did not provide sufficient training and experience to qualify her as an expert witness on reasonableness. Furthermore, the record reveals that he was not a part of the process of formulating such company policy. Simply following a company directive does not equate to providing a foundation for expert witness opinion.

The trial court properly found that Mr. O’Hara’s affidavit conflicted with his prior deposition testimony wherein he admitted that he had not personally reviewed any documentation regarding payments from other third-party payors and wherein he admitted that has was not even familiar with the medical services (CPT codes) that were billed in this matter. The majority speculates that perhaps between the time of the deposition and the execution of the affidavit that Mr. O’Hara had reviewed additional documents. However, this fact is nowhere to be found in the record. To the extent of any conflict in the testimony it was incumbent upon the Defendant, not this court, to find an explanation for the discrepancy in the opinion. See Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954).

The Appellee has provided the court with numerous opinions of other panels of this Court affirming summary judgment where the Appellant filed an affidavit from one its adjusters. In United Automobile Insurance Company v. Miami Dade County MRI, Corp., (a/a/o Erlin Duran); Case No. 16-450 AP (Fla. 11th Jud. Cir., March 22, 2019) [27 Fla. L. Weekly Supp. 221a]. In the Duran matter the Court held that the trial court properly found that the adjuster was unqualified as an expert or lay witness, and her affidavit did not raise an issue of material fact such that it would preclude summary judgment.

Likewise in United Automobile Insurance Company v. Miami Dade County MRI, Corp., (a/a/o Barbara Harrell); Case No. 15-279 AP (Fla. 11th Jud. Cir., September 26, 2018), a panel of this circuit affirmed summary judgment on reasonableness and held that the testimony of the adjuster that 200% of Medicare is reasonable did not create an issue of fact. See also United Automobile Insurance Company v. Miami Dade County MRI, Corp., (a/a/o Jawanda James); Case No. 17-26 AP (Fla. 11th Jud. Cir., April 26, 2019) [27 Fla. L. Weekly Supp. 223a]; — affirming summary judgment on reasonableness finding no abuse of discretion in striking affidavit of Dr. Dauer, M.D. filed in opposition to Plaintiff’s motion for summary judgment as to reasonableness; and United Automobile Insurance Company v. Miami Dade County MRI, Corp., Inc. (a/a/o Julio Reyes); Case No. 17-25 AP (Fla. 11th Jud. Cir., April 26, 2019) [27 Fla. L. Weekly Supp. 225b]; — affirming summary judgment on reasonableness finding no abuse of discretion in striking the affidavit of Dr. Dauer, M.D. filed in opposition to Plaintiff’s motion for summary judgment as to reasonableness; United Automobile Insurance Company v. Miami Dade County MRI, Corp., M.D. (a/a/o Barbara Perez); Case No. 17-27 AP (Fla. 11th Jud. Cir., April 26, 2019) [27 Fla. L. Weekly Supp. 225a]; — affirming summary judgment on reasonableness finding no abuse of discretion in striking affidavit of Dr. Dauer, M.D. filed in opposition to Plaintiff’s motion for summary judgment as to reasonableness; United Automobile Insurance Company v. Miami Dade County MRI, Corp., M.D. (a/a/o Joseph Dames), Case No. 17-148 AP (Fla. 11th Jud. Cir., May 24, 2019); — affirming summary judgment on reasonableness finding no abuse of discretion in striking affidavit of Dr. Dauer, M.D. filed in opposition to Plaintiff’s motion for summary judgment as to reasonableness.

Given the many rulings filed by the Appellee from other trial courts and other appellate panels in this Circuit affirming summary judgment on the issue of reasonableness including, as noted above, one opinion finding that the Defendant’s very same witness at issue in this case was unqualified as either an expert or lay witness, and other instances where trial courts have excluded similar affidavits as being conclusory and otherwise inadmissible, it cannot be said that the trial court abused its discretion in excluding the affidavit of John O’Hara. See State Farm Mutual Automobile Insurance Company v. Pembroke Pines MRI, Inc., 171 So.3d 814 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1879a].

The majority writes that the trial court improperly weighed the evidence and that because the posture of the case was at the summary judgment stage that all disputed issues of fact were to be resolved against the Appellee. However, the decision to admit or exclude evidence does not equate to the weighing of evidence and by its opinion that majority is applying a too restrictive standard upon the trial’s court ability to exclude expert witness evidence.

In its opinion adopting Daubert the Florida Supreme Court cited to the case of Gen. Elec. Co. v. Joiner, 522 U.S. 136, (1997) wherein the United States Supreme Court stated that:

Alleged fact that grant of summary judgment on basis of inadmissibility of expert scientific testimony was “outcome determinative” as to products liability action did not compel finding that it should have been subjected to a more searching standard of review than “abuse of discretion” standard . . . while “disputed issues of fact are resolved against the moving party[,] . . . the question of admissibility of expert testimony is not such an issue.

Given that the trial court applied the correct evidentiary standard and given the presumption of correctness which is to be afforded to the trial court’s rulings regarding evidence, together with the reasons stated above, this Court cannot find that the trial court abused its discretion.

Lastly, even upon de novo review I would affirm. The affidavit of John O’Hara offers nothing but conclusory statements and it does little more than create a paper issue by comparing the Plaintiff’s charges to the lowest payors in the community while ignoring the undisputed evidence in the record of higher charges and reimbursements including reimbursements made by the Appellant. A party may not defeat a motion for summary judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Reflex, N.V. v. UMET Trust, 336 So. 2d 473 (Fla. 3d DCA 1976).

In the matter of United Automobile Insurance Company v. Miami Dade County MRI, Corp., Inc., (a/a/o Erlin Duran); Case No. 15-279 AP (Fla. 11th Jud. Cir., September 26, 2018) [27 Fla. L. Weekly Supp. 221a], Milian, Hirsch, Silber, JJ., cited above, the Court found that the mere existence of Medicare and HMO and PPO rates that are lower than actual charges in the community does not create an issue of fact as to the reasonableness of a medical provider’s charge that exceeds reimbursement rates. The Duran Court cited to the Third District Court of Appeal opinion in Atkins v. Allstate Ins. Co., 382 So. 2d 1276 (Fla. 3d DCA 1980) and held that “[t]his distinction is important because it would be unfair to assess medical charges by a comparison of dissimilar insurance and non-insurance charges. Local circuit appellate decisions have held that Medicare, HMO and PPO lower rates are not relevant as to the issue of reasonableness of charges. Virtual Imaging Svcs. Inc. v. State Farm Mut. Ins. Co., 23 Fla. L. Weekly Supp. 515a (Fla. 11th Cir. Ct. 2015); Hialeah Medical Inc. v. United Auto Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Ct. 2013).”

The trial court correctly reasoned that the purpose of the Florida No-Fault law which was to guarantee “swift and virtually automatic” payment of out of pocket medical expenses. Gov’t Employees Ins. Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987). The Florida Supreme Court has stated that any impediment to the right of the insured to recover in a ‘swift and virtually automatic’ way has the potential for interfering with the PIP scheme’s goal of being a reasonable alternative to common law tort principles. Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013) [38 Fla. L. Weekly S440a]. Allowing an insurance company to withhold even a portion of payment of a medical bill based simply upon a comparison to the lowest payment amounts that can be found in the medical community to the exclusion of the any other higher reimbursements which support payment of the full charge to assert that anything above such amount is unreasonable subverts the very purpose of No-Fault law.

The majority’s interpretation of the role of the Medicare fee schedules is in violation of the Supreme Court’s decision in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. In its opinion the Florida Supreme Court made it clear that the addition of the permissive payment limitations in Section 627.736(5)(a)(2)(f), Fla. Stat., by way of the 2008 amendments to the Florida No-Fault law did not act as a limitation or measure of the reasonableness of a medical charge but instead represents a payment limitation that an insurer may apply regardless of the reasonableness of a given charge. Virtual 141 So.3d at 156.

The Virtual Court drew this distinction from the fact that the prior version No Fault Act contained fee schedule language which expressly limited what an MRI provider could charge to a multiple of 200% of Medicare. The Court then stated:

In contrast to this MRI-specific language, the Legislature did not state in the 2008 amendments that a provider’s charge “shall not exceed” a certain allowable amount of the Medicare fee schedules. Instead, the Legislature specifically used the word “may” to reference an insurer’s ability to limit reimbursement.

Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 157 (Fla. 2013) [38 Fla. L. Weekly S517a]. The Court then further held that such may only be applied with where the insurer has expressly elected to apply such payment limitation. Virtual, 141 So. 3d at 160. It is undisputed that the Appellant did make such express election in its policy.

At its core the majority opinion is based upon the concept that upon the Defendant’s presentation of lower reimbursements rates the court must draw an inference that charges above those lower rates are potentially unreasonable thereby creating a judicially created rebuttable presumption that only the lowest reimbursements rates are per se reasonable. Such inference would perhaps be reasonable if the evidence revealed that there are no reimbursements rates consistent with the Appellee’s charge, but such is not the evidence in this case.

I disagree with the recent rulings cited by the Appellant and the majority from other panels of this court reversing summary judgments on the reasonableness of charges. Collectively these 11 Circuit Court opinions have had the effect of placing a chilling effect upon the trial court’s function on ruling on matters concerning the admission or exclusion of opinion evidence. Such restriction on the trial court’s discretion stands in direct conflict with the adoption of the Daubert standard the purpose of which was to empower trial courts to exclude previously admissible opinion testimony.

A review of the prevailing decisions from other the circuit courts reveals that this Circuit stands virtually alone in reversing summary judgments based upon the type of evidence offered by the Appellant to defeat summary judgment. As noted by Judge Renatha Francis in the James case cited above, the Appellant itself has openly admitted that this circuit is the only circuit where its appeals the granting of summary judgment on the issue of the reasonableness of charges.

For these reasons I would affirm the final judgment under review.