25 Fla. L. Weekly Supp. 942a
Online Reference: FLWSUPP 2511MCNEInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Reasonableness of charges — Trial court did not err in granting medical provider’s motion for summary judgment on issue of reasonableness of charges where evidence in support of motion was sufficient to shift burden to insurer, and insurer did not meet burden to show genuine issue of material fact or triable issue as to reasonableness — Relatedness and medical necessity of treatment — Trial court erred in entering summary judgment in favor of provider on issues of relatedness and medical necessity of treatment upon concluding that insurer waived right to contest those issues by making partial payment of benefits before commencement of lawsuit
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. OPEN MAGNETIC SCANNING, LTD., d/b/a Windsor Imaging, a/a/o Reniese McNeal and Jenita Foney, Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE16-016101 (AP) L.T. Case No. COWE13-006873. Consolidated Cases: CACE16-014003 (AP), CACE16-016131 (AP). December 18, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Alan R. Marks, Judge. Counsel: Nancy W. Gregoire, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for Appellant. Joseph R. Dawson, Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Open Magnetic Scanning, Ltd. (“Open”).1 Having carefully reviewed the briefs, the record and the applicable law, this Court dispenses with oral argument, and finds that the final judgment should be reversed as set forth below.
In the underlying case, Open sued State Farm for breach of contract for personal injury protection benefits. Open filed a motion for partial summary judgment as to the reasonableness of its charges. Open later filed a motion for summary disposition as to all issues. The trial court granted Open’s motions as to the reasonableness of Open’s charges.
Open then filed a motion for judgment on the pleadings as to the relatedness and medical necessity of the medical services rendered. Open argued that, in paying a reduced amount before the commencement of the lawsuit, State Farm waived its right to dispute the relatedness and medical necessity of the medical services rendered. The trial court granted the motion. Subsequently, the trial court entered a final judgment in favor of Open.
“ ‘The standard of review governing a trial court’s ruling on a motion for summary judgment is de novo.’ ” Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365, 367 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D193a] (quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) [26 Fla. L. Weekly S465a]). The standard of review governing a trial court’s ruling on a motion for summary disposition is de novo. State Farm Mut. Auto. Ins. Co. v. Margate Pain & Rehab. Inc., No. CACE14-009515 (Fla. 17th Cir. Ct. Mar. 2, 2017). However, the decision to exclude an affidavit in summary judgment proceedings is reviewed under the abuse of discretion standard. See Pohlman v. Barry, 753 So. 2d 603, 604 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D432a].
The trial court did not err in granting Open’s motions as to the reasonableness of Open’s charges. Florida courts have long resolved the issue of reasonableness at summary judgment. See generally State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D805b] (affirming the trial court’s granting of summary judgment on the issues of reasonableness, medical necessity, and relatedness). After a careful review, this Court finds that Open’s evidence in support of its motions was legally sufficient to shift the burden to State Farm. State Farm did not carry its burden to show a genuine issue of material fact or a triable issue as to the reasonableness of Open’s charges. Therefore, the trial court’s order granting Open’s motions as to reasonableness of Open’s charges is affirmed.
However, the trial court did err in granting Open’s motions as to the relatedness and medical necessity of the services rendered. State Farm did not waive the right to dispute the relatedness and medical necessity of treatment when State Farm made a partial payment of benefits before commencement of the lawsuit. Section 627.736(4)(b)6., Florida Statutes, states as follows:
[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.
§ 627.736, Fla. Stat. Therefore,
[e]ven after a claim is denied or reduced, an insurance company may still defend a suit by the provider claiming additional amounts on the grounds that the service was not medically necessary or that the amount was not reasonable.
Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 137 So. 3d 1049, 1057 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]; see also State Farm Mut. Auto. Ins. Co. v. Bruce Chiropractic & Comprehensive Care, PLLC, 23 Fla. L. Weekly Supp. 890a (Fla. 5th Cir. Ct. Mar. 7, 2016) (holding that a plain reading of the statute at issue shows that State Farm had a right to contest at any time that the claim was unrelated, not medically necessary, or that the charges were not reasonable, and that the county court erred in its determination that State Farm had waived this right by paying the bills at a reduced amount before commencement of the lawsuit). Therefore, the trial court’s order granting Open’s motions as to the relatedness and medical necessity of the services rendered is reversed.
Accordingly, the final judgment in favor of Open is hereby REVERSED. Open’s Motion for Appellate Attorney’s Fees is hereby GRANTED, as to the appellate attorney’s fees related to defending the trial court’s order granting Open’s motions as to the reasonableness of Open’s charges, contingent upon Open ultimately prevailing in the case. This case is REMANDED for proceedings consistent with this Opinion. (BIDWILL, RODRIGUEZ, and SINGHAL, JJ., concur.)
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1On October 18, 2016, CACE16-016101 (AP) was consolidated under CACE16-014003 (AP). On November 13, 2017, CACE16-014003 (AP) and CACE16-016101 (AP) were consolidated with CACE16-016131 (AP) for all appellate purposes. This opinion shall be filed in all three circuit civil case numbers.