STATE FARM MUTUAL

v.

I & A MEDICAL CENTER

Before: TRAWICK, WALSH and SANTOVENIA, JJ.

[*1] PER CURIAM.

State Farm Mutual Insurance Company ("State Farm") appeals the trial court's order granting final summary judgment on behalf of I & A Medical Center, Inc., the medical provider who treated Leni Ortega for her injuries sustained in a car accident. State Farm argues that the trial court erred in rejecting conflicting evidence on whether the medical treatment rendered was related to the accident, medically necessary or reasonable in cost. In granting summary judgment, the trial court rejected State Farm's filed evidence, including the affidavits of Dr. Jan Parrillo, a medical doctor, and Dr. Darrell Spell, an actuarial expert in the field of medical bill pricing, as well as other excerpts from the discovery.

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 Page 2 of 6 [*2] 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 offered in summary judgment proceeding 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 experts' affidavits and granting summary judgment on the issues of reasonableness, relatedness and medical necessity of care provided.

Regarding the element of the reasonableness of the bills, the provider argued below that because they billed less than 75% of medical providers and because "reasonableness is a range," the insurer failed to present sufficient evidence to require a jury trial on this issue. Regarding whether the bills were reasonable in price, it is dismaying that the parties could not reach resolution on this issue. This provider tethered its charges to the Medicare Part B schedule and charged between N 1 Walerowicz v. Armand-Hosang, 248 So. 3d 140 (Fla. 4th DCA 2018) (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). Page 3 of 6 [*3] 202% and 220% of the fee schedule. State Farm's witness opined that a reasonable rate of reimbursement would have been 200% of the Medicare Part B fee schedule. The difference between the rate charged and the rate the insurer reimburses is negligible. To resolve this issue by summary judgment, the trial judge opined that a reasonable price falls within a "range." But in so concluding, the trial judge deprived the insurer of its right to seek a jury's answers to the following questions listed on the model verdict form approved by the Supreme Court of Florida:

3. [Is the charge for the service reasonable?] [Are the charges for the services reasonable?] If you find the charge or charges reasonable, you should proceed to number 4. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, then proceed to question 4.

4.

What is the total amount you find reasonable? $

It may seem wasteful to this Court to expend the resource of a jury trial to resolve a dispute where the difference in proof is miniscule - especially when viewed through the lens of whether a price is "reasonable" -- but in removing this issue from a jury's determination, the trial court engaged in weighing the evidence to eliminate a discrepancy, rather than ruling based on uncontroverted evidence, and thereby, erred. See, e.g., Svetlanovich v. State Farm Florida Insurance Company, 291 So. 3d 1261 (Fla. 2d DCA 2020) (error to grant summary judgment Page 4 of 6 [*4] on defense of material misrepresentation even where disputed facts evince minor discrepancies in insurance application).

On the issue of relatedness and medical necessity, it was error to strike State Farm's affidavit of Dr. Jan Parrillo. Dr. Parrillo would have testified that 36 medical visits over the course of 12 weeks was excessive, and that the patient needed no more than 3 weekly sessions for six weeks of treatment to address her injuries. This testimony was admissible, relevant and clearly conflicted with the Provider's evidence. It was an abuse of discretion to exclude this evidence.

Taking State Farm's disputed evidence into account, it was error to grant summary judgment. See United Auto. Ins. Co. v. Gables Ins. Recovery Inc. a/a/o Maricelys Sanchez, 2017-245-AP-01 (Fla. 11th Cir. Ct. May 6, 2020); 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 Page 5 of 6 [*5] Rene Dechard, 27 Fla. L. Weekly Supp. 226a (Fla. 11th Cir. Ct., August 12, 2019); United Automobile Insurance Co., Appellant, 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.

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.

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