27 Fla. L. Weekly Supp. 677a

Online Reference: FLWSUPP 2708PAGAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court improperly rejected affidavit of insurer’s adjuster for referring to Medicare fee schedules and negotiated contract rates — Medicare and other fee schedules and negotiated contract rates are relevant to consideration of reasonableness of charges submitted for PIP benefits — Affidavit that complied with requirements of rule 1.510(e) and was not conclusory was legally sufficient — Reversed and remanded for further proceedings

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI-DADE COUNTY MRI, CORP., (a/a/o Miguel Garcia Pagan), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-264 AP 01. L.T. Case No. 12-14265 SP 23 (01). Hearing on May 15, 2019. Opinion filed September 23, 2019. On Appeal from the County Court for Miami-Dade County. Linda Singer Stein, Judge. Counsel: Michael J. Neimand, House Counsel of United Automobile Insurance Company, for Appellant. Kenneth J. Dorchak, Buchalter, Hoffman & Dorchak, P.A., and Chad A. Barr and Heather M. Kolinsky, Law Office of Chad A. Barr, P.A., for Appellee.

(Before, RODRIGUEZ, ESPINOSA DENNIS, and YOUNG, JJ.)

(YOUNG, 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 Miguel Garcia Pagan (“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.

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). 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]. 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]. 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].

The issue in dispute here is the trial court’s summary judgment decision on the issue of reasonableness of the Provider’s bill. In opposition to the Provider’s motion for summary judgment, the Insurer relied on the affidavit of its claims adjuster, Lizbeth Velazquez. Specifically, the issue before this Appellate Court is whether this affidavit proved the existence of genuine issues of material fact regarding the reasonableness of the Provider’s bill, and whether the trial court applied the correct rule of law in making its decision.

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. Allstate Indem. Co. v. Derius, 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).

In opposition to the motion for summary judgment, and to make its case in challenging the reasonableness of the Provider’s bill, the Insurer submitted evidence concerning the following factors that may be considered 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 Insurer filed the affidavit of claims adjuster Lizbeth Velazquez which introduced such evidence. Her affidavit compared the amounts billed by the Provider with the range of reimbursement levels in the community and pertinent fee schedules including Medicare, Tricare, 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 fee schedules. Medicare Part B Fee Schedules are fee schedules 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 Tania Barrios, Case No. 15-431 AP (Fla. 11th Cir. Ct. March 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 Velazquez’s affidavit should not be rejected for referring to them. Accordingly, we find that the trial court improperly rejected the Velazquez 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. Rosenfield v. Oceania Cruises, Inc., 654 F. 3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a; on motion for rehearing en banc, 23 Fla. L. Weekly Fed. C1105a]. 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 Ms. Velazquez’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 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.” 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).

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 Velasquez affidavit complies with the requirements of Rule 1.510(e) of the Florida Rules of Civil Procedure. Velazquez’s affidavit is not conclusory because her affidavit indicates the source of her 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 explains how her personal knowledge and experience, including decades of practicing in the insurance industry and reviewing bills for patients who were injured in automobile accidents, provides her with knowledge regarding the reasonableness of fees for services like the ones at issue in this case. The affidavit contains evidence pertinent to the statutory factors that may be considered in the determination of reasonableness. The affidavit was also supported by attached 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, Lizbeth Velazquez, is qualified to address the topic of reasonableness. We find that her affidavit is legally sufficient, is not conclusory, and is not invalidated by her prior deposition testimony. We find that her references to Medicare, Tricare, 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 her affidavit.

Additionally, in reviewing the many notices of supplemental authority filed by the parties, we found that the authorities submitted by the Appellee/Provider consisted mostly of trial court orders (many from Broward County), a few circuit appellate opinions, and a few per curiam affirmances (which provide no findings of law or fact). These cases are not binding authority and we do not find them to be persuasive. We also find that it is a disingenuous practice to submit trial court orders as supplemental authority, especially where they involve different facts and affidavits. It is even more concerning when per curium affirmances are submitted with parentheticals expressly indicating that the affirmances included findings, where no such findings were made.

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 Velazquez’s affidavit creates a genuine issue of material fact regarding the reasonableness issue, and at the very least, 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 DENIED and 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. (RODRIGUEZ and ESPINOSA DENNIS, JJ., concur.)

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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]).