UNITED AUTOMOBILE

v.

GABLES INSURANCE

Before: TRAWICK, WALSH and BOKOR, JJ.

Filing # 107154849 E-Filed 05/06/2020 05:16:59 PM [*2] Page 2 of 6 PER CURIAM. United Automobile Insurance Company (UAIC) appeals the trial court’s order granting final summary judgment on behalf of the provider, Gables Insurance Recovery, Inc. (“Gables Recovery”). In granting summary judgment below, the trial court first found that Gables Recovery introduced competent evidence supporting its prima facie claim that its bills were reasonable. The trial court then struck UAIC’s affidavit of Lizbeth Velasquez, UAIC’s adjuster, on the ground that the opinion relied upon hearsay. In striking 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); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). 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), citing State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010). The standard of review of an order admitting or excluding expert testimony is abuse of discretion. See State Farm Mutual Automobile Insurance Company v. CEDA Health of Hialeah, LLC, 2020 WL 1036485 at * 2 (Fla. 3d DCA 2020) (“In [*3] Page 3 of 6 its opinion, the circuit court identified the correct law: ‘The standard of review of an order granting summary judgment is de novo, while the standard of review regarding a trial court's admission or exclusion of expert testimony is for abuse of discretion.’”). See also Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 579 (Fla. 1st DCA 2016) (trial court order striking witness affidavit is reviewed for abuse of discretion). While we agree that the provider established a prima facie case for the reasonableness of its bills by introducing the testimony of the provider,¹ we find the trial court erred in striking Appellant’s expert’s affidavit and granting summary judgment on the issue of reasonableness. The UAIC adjuster, Lizbeth Velazquez, has adjusted hundreds of insurance claims since 1994. Because of her extensive experience, she has gained knowledge of reasonable reimbursement levels in the PIP community of providers in Miami-Dade, Broward and Palm Beach counties. She testified in her affidavit, “[a]s an expert witness, I review various documentation regarding the criteria laid out in section 627.736(5)(a)(1) of the PIP statute, including the following:¹) the usual and customary charges and payments accepted by providers at issue, 2) reimbursement levels in the community, 3) (testimony by lay witness associating treatment to bill was sufficient to establish reasonableness of the bills); A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) (patient may testify as to the reasonableness of his own medical bills). [*4] Page 4 of 6 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.” She testified that the amount charged for the CPT codes at issue was above a reasonable rate and gave evidence what she believed the charges should be. This opinion was tethered to her “personal background, training and experience receiving, analyzing, adjusting and determining reimbursement dollar amounts for PIP claims in South Florida . . .coupled with [her] personal knowledge of reimbursement levels in the community and [her] personal knowledge of Medicare reimbursement fee schedules, Workman’s Compensation reimbursement fee schedules” and other fee schedules. While a trial court has discretion on the admission and exclusion of evidence, “[t]he trial court's discretion, however, is constrained by the evidence code and applicable case law.” Ortuno v. State, 54 So. 3d 1086, 1088 (Fla. 1st DCA 2011). Here, the trial court abused its discretion for two reasons. First, if the expert here relied upon hearsay, that is permitted. An expert witness is permitted to rely upon hearsay – so long as she does not become a conduit for hearsay. See Tolbert v. State, 114 So. 3d 291, 294 (Fla. 4th DCA 2013), citing Linn v. Fossum, 946 So. 2d 1032, 1037–38 (Fla. 2006). [*5] Page 5 of 6 Second, the expert did not become a conduit for hearsay. She did not offer specific testimony about the contents of various fee schedules, only that she relied in part upon her extensive experience with these fee schedules in reaching her opinions. Moreover, in her capacity as an insurance adjuster, she was specifically permitted to consider these fee schedules as part of her job. Section 627.736(5)(a) 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 strike her testimony. 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); United Automobile Insurance Co., Appellant, 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., Appellant, 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., Appellant, 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., Appellant, v. [*6] Page 6 of 6 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. Appellee’s Motion for Attorney’s Fees is DENIED. 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 amount.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.