28 Fla. L. Weekly Supp. 450a

Online Reference: FLWSUPP 2806ZENIInsurance — Personal injury protection — Summary judgment — Error to reject affidavit of expert on reasonableness of charges

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ZENITH MOBILE DIAGNOSTIC, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-000300-AP-01. L.T. Case No. 2013-015705-SP-25. August 6, 2020. On Appeal from the County Court in and for Miami-Dade County, Hon. Gina Beovides, County Court Judge. Counsel: Michael J. Neimand, for Appellant. G. Bart Billbrough and Kevin Whitehead, for Appellee.

(Before WALSH, TRAWICK, and SANTOVENIA, JJ.)

OPINION

(PER CURIAM.) United Automobile Insurance Company (“UAIC”) appeals the trial court’s order entering a final judgment on behalf of the provider, Zenith Mobile Diagnostic (“Zenith”). In granting summary judgment below, the trial court first found that Zenith introduced competent evidence supporting its prima facie claim that its bills were reasonable. The trial court then rejected UAIC’s affidavit of Monica Johnson, UAIC’s adjuster, records custodian, and expert witness, on the ground that the opinion utilized the cited fee schedules as an improper payment limitation without notifying its insured as required by Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a]. In rejecting UAIC’s evidence, the trial court rendered the provider’s evidence uncontroverted, and thereafter entered summary judgment.

The standard of review of a trial court’s entry of final summary judgment is de novo. See Volusia Cnty. 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. Ins. 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].

Zenith filed in support of its summary judgment motion the affidavit of its owner and physician, Dr. Rodolfo Alfonso, D.C., which opined that the charges for three x-rays of the spine were reasonable.

Monica Johnson, UAIC’s adjuster, records custodian and expert witness as to reasonableness, provided an affidavit attesting to her background, training, and experience. Attached to her affidavit were several exhibits including documentation relating to Medicare, Tricare, and Worker’s Compensation fee schedules. Johnson has reviewed thousands of medical bills as an insurance adjuster since 1998. Because of her extensive experience, she has gained knowledge of reasonable reimbursement levels in the PIP community of providers in South Florida. She testified in her affidavit to the criteria in Section 627.736(5)(a)(1) of the PIP statute which she applied for determining the reasonableness of each individual charge, including the following: 1) the usual and customary charges and payments accepted by providers at issue, 2) reimbursement levels in the community, 3) various state and federal fee schedules applicable to automobile and other insurance coverages, and 4) other information relevant to the reasonableness of the reimbursement of the services. Her opinion was based upon her background, training, experience and education in the field of insurance as an adjuster coupled with her personal knowledge of reimbursement levels in the community and her personal knowledge of applicable state and federal fee schedules. She testified that the amount charged for the CPT codes at issue was not reasonable.

Notwithstanding that we agree that the provider established a prima facie case for the reasonableness of its bills, we find the trial court erred in rejecting Appellant’s expert’s affidavit and granting summary judgment on the issue of reasonableness. The trial court’s July 28, 2017 summary judgment order noted that the affidavit was not sufficient to raise a disputed issue of material fact and incorrectly utilized the cited fee schedules as an improper payment limitation without notifying its insured as required by Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

In her capacity as an insurance adjuster, Johnson was specifically permitted to consider these fee schedules as part of her job. Section 627.736(5)(a)(1) specifically permits an insurer to take all the above information into account when determining whether a medical charge is reasonable. Accordingly, it was an abuse of discretion to accept the provider’s affidavit while rejecting UAIC’s affidavit. Taking UAIC’s affidavit into account, it was error to grant summary judgment. See State Farm Mutual Ins. Co. v. Gables Insurance Recovery a/a/o Yuderis Rego, 27 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Nov. 20. 2019); United Automobile Insurance Co. v. Open MRI of Miami Dade, Ltd. a/a/o Rosa Castillo, Case No. 2017-326-AP-01 (Fla. 11th Cir. Ct. Nov. 6, 2019) [27 Fla. L. Weekly Supp. 791b]; United Automobile Insurance Co., v. Miami Dade County MRI, Corp. a/a/o Marta Figueredo, 27 Fla. L. Weekly Supp. 506b (Fla. 11th Cir. App. July 30, 2019); United Automobile Insurance Co., v. Miami Dade County MRI, Corp. a/a/o Javier Rodriguez, 27 Fla. L. Weekly Supp. 225c (Fla. 11th Cir. Ct. July 25, 2019); United Automobile Insurance Co. v. Miami Dade County MRI, Corp. a/a/o Rene Dechard, 27 Fla. L. Weekly Supp. 226a (Fla. 11th Cir. Ct., August 12, 2019); United Automobile Insurance Co. v. Millennium Radiology, LLC a/a/o Javier Rodriguez, 25 Fla. L. Weekly Supp. 911b (Fla. 11th Cir. Ct., July 19, 2019).

Accordingly, the summary judgment and final judgment entered below are hereby REVERSED, and this cause is REMANDED to the trial court. Appellant’s Motion for Attorney’s Fees is conditionally GRANTED (conditioned upon Appellant ultimately prevailing and the enforceability of the proposal for settlement) and REMANDED to the trial court to fix the amount.