STATE FARM FIRE & CASUALTY CO

v.

MILO DIAGNOSTIC CENTER, INC., A/A/O LEIDYS LOPEZ

Opinion filed: ounty Court for Miami-Dude County, Florida, Judge MARTINEZ, ESQUIRE for l from the C

STEPHANIE

An Appea Hague UGLAS H. STEIN, ESQUIRE, and llee.

J.

DO ellant. SQUIRE, f NS, ZAY S,

APP

MARLENE s. muss, E Before so I ant}, s L one ”) appeals the final “Milo

PER CU

. Appellant, State Farm Fire & Casualty Company (“State Farm ent in favor of Appellee, Milo Diagnositio Center Inc., a/a/o Leidys Lopez ( asons below, we reverse the final judgment in favor of Appellee shifled the burden of proof to the defendant, Andrew judgm Diagnostic”). For the re and find that the trial court improperly [*2] relieving the plaintiffof its burden ofproving that the contested charges were reasonable, related to the crash, and medically necessary. We further find that the trial court abused its discretion by not allowing the defendant to present evidence relevant to the defendant’s claim that the contested charges were not reasonable, related and necessary. Milo Diagnostic filed suit against State Farm to recover personal injury protection policy benefits for mobile x-rays claimed to be medically necessary to treat injuries sustained by Leidys Lopez, a patient under an insurance policy issued by State Farm. State Fann answered the complaint by denying the allegations set forth in the complaint and by claiming that the use of the mobile x-ray, where it was not impracticable to transfer the patient to a stationary radiographic installation, violates Florida Administrative Code 64E-5.502(0) making the services rendered non-compensable. Milo Diagnostic moved for summary judgment on the issue of the mobile x-rays, arguing essentially that State Farm could not raise a violation ofthe Administrative Code as an affirmative defense because there was no right to private enforcement of the Administrative Code. An amended motion for summary judgment was filed several months later raising similar arguments. Ultimately, Milo Diagnostic filed a motion for final stunmary judgment arguing that there was no genuine issue of material fact remaining inasmuch as had admitted “that the x-rays at issue, separate from the mobile component, were reasonable, related and necessary.” State Farm responded by maintaining that because the question of whether it was reasonable and necessary to perform mobile x-rays instead of stationary x-rays was still an issue and Milo Diagnostic had failed to meet its burden of establishing undisputed facts addressing the reasonableness and necessity of performing mobile x-rays, Milo Diagnostic was not entitled to summary judgment. State Farm specifically argued that Milo Diagnostic had failed to put forth any evidence to support the claim that mobile x-rays were reasonable and necessary. ' [*3] On January 21, 2010, the trial court entered an order granting partial summary judgment. Although the trial court began the discussion of “reasonable, related, and medically necessary” with the broad statement that “Defendant concedes that it is not disputing that the x-rays were reasonable, related and medically necessary aside from the mobile component,” the trial court fotmd that the alleged impropriety of using a mobile x-ray did raise a genuine issue of material fact warranting the denial of summary judgment in the plaintiffs favor. In an eighteen page motion for rehearing, reconsideration and/or renewed motion for final summary judgment Milo Diagnostic challenged this order by addressing the question‘ of whether the mobile x-rays were related to the crash in question and were medically necessary. Milo Diagnostic concluded this discussion by claiming entitlement to “summary judgment on the issues of related and medically necessary.” Rehearing was denied and the case proceeded to trial before a successor judge. At the conclusion ofthe trial, the jury was instructed by the court that “State Farm claims that it was practical for Leidys Lopez to be transferred to have an x-ray performed at a stationary location.” After defining the standard ofproof, the court ftuther instructed the jury that “State Farm must show by the greater weight of the evidence that it was practical to transfer Leidys Lopez to have x-rays performed at a stationary location.” On the verdict form, the jury was asked to determine whether it was “practical to transfer Leidys Lopez to a fixed location to have a stationary x-ray performed.” The verdict form further instructed the jtu'y that the verdict would be for the defendant if the answer was “yes” and the verdict would be for the plaintiff ifthe answer was “no.” The jury returned a verdict in favor ofthe plaintiff. In a motion for new trial filed on November 8, 2010, State Farm once again argued that the trial court erred in shifting the burden of proof to State Farm and improperly limited the admission of evidence relative to the question of whether the 1 The plaintiff also addressed the reasonableness of the charge by arguing that the court clearly “intended to grant summary judgment in favor _of the Plaintiff as to the reasonableness of the Plaintiffs charges” but had simply failed to specifically do so in the January 21, 2010, order. [*4] mobile x-rays were medically unnecessary or unlawful. This motion was denied on December 1, 2010. Final judgment in favor of the plaintiff was entered on December 23, 2010. There is little question that the plaintiffin a lawsuit seeking benefits under the PIP statutes bears the initial burden of proof. Similarly, there is little doubt that “both reasonableness and necessity are essential elements of a plaintiffs case.” Derius v. Allstate Indem. C0., 723 So. 2d 271, 272 (Fla. 4th DCA 1998). In this ease, State Farm contended that the use of a mobile x-ray was not reasonable or necessary because, inter alia, the plaintiff had failed to establish that the use of the mobile x-ray was authorized under the Administrative Code. Notwithstanding the fact that summary judgment had been denied on the issue of the reasonableness and necessity of the mobile x-rays in question, Milo Diagnostic persuasively argued at trial that the question of whether the mobile x-rays were reasonable and necessary was nothing more than an affirmative defense, requiring State Farm to prove the impractieality of transferring the insured to a stationary x-ray facility. By agreeing with Milo Diagnostic, the trial court improperly shifted the burden of proof, requiring State Farm to establish an affirmative defense without requiring Milo Diagnostic to meet its initial burden of proving that the mobile x-rays were reasonable, related and necessary. See Allstate Insurance Company v. Digital Medical Diagnostic (a/:1/0 Rosario Alvarez), 13 Fla. L. Weekly Supp. 960a (Fla. llth Cir. July 17, 2006). The error in shifting the initial burden ofproofto State Farm was compounded by the trial court rulings which prevented State Farm from introducing evidence relevant to the sole issue presented to the jury, i.e., whether it was practical to transport the patient to a stationary x-ray facility. Once given the burden of establishing that is was practical to transport the patient to a stationary x-ray facility to rebut the claim that the mobile x-rays were reasonable, related and necessary, State Farm attempted to meet this burden by demonstrating that the crash was not severe enough to cause injuries that would have rendered the patient immobile or otherwise unable to visit a stationary x-ray facility. State Farm also attempted to rebut the claim that the mobile x-rays were reasonable and [*5] necessary by establishing that they were of such poor quality, even excluding relevant portions of the spine fi'om the images, so as to render them of little or no use as a diagnostic tool. The evidentiary limits established by the trial court left State Farm unable to rebut the claim that the mobile x~rays were reasonable, related and medically necessary. Based upon the foregoing, this case is remanded to the lower court with directions that both the order denying a new trial and the final judgment in favor ofthe plaintiff be vacated. The lower court is further directed to conduct all necessary proceedings consistent with this opinion.

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