UNITED AUTOMOBILE INSURANCE

v.

MILLENNIUM RADIOLOGY, LLC

Before: TRAWICK, WALSH and SANTOVENIA. PER CURIAM. United Automobile Insurance Company (“UAIC”) appeals the trial court’s order entering a final judgment on behalf of the provider, Millennium Radiology, Filing # 115111870 E-Filed 10/16/2020 01:57:17 Millheiser, M.D. filed in opposition to Provider’s summary judgment motion, finding that Dr. Millheiser was not qualified to render an opinion on MRI pricing. While not mentioned in the summary judgment order, the record below reflects that UAIC also filed the July 23, 2015 affidavit of Lizbeth Vazquez, UAIC’s adjuster and records custodian, in opposition to the Provider’s summary judgment motion on reasonableness. 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 [*3] (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 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). The Millheiser affidavit opines that the MRI charge was not reasonable and sets forth his background, experience and the basis of his knowledge regarding MRI’s and other diagnostic studies in connection with his clinical practice and peer reviews he has performed in Miami-Dade and Broward counties since 1972. Also attached to the Millheiser affidavit are charges submitted to and paid by PIP insurers for MRI’s from 2008 until 2012 in Miami-Dade and Broward counties which he reviewed, together with the fee schedule reimbursement rates for Medicare and Florida workmen’s compensation for the same MRI code at issue here which he also [*4] reviewed in reaching his opinion. The Millheiser affidavit was sufficient to raise a disputed issue of material fact regarding the reasonableness of the MRI bill1.

Similarly, the Vazquez affidavit, standing alone, was sufficient to raise disputed issues of material fact as to reasonableness, thus precluding summary judgment in Provider’s favor. The Vazquez affidavit sets forth her background, training, and experience. She has adjusted hundreds of insurance claims and because of her extensive experience, she has gained knowledge of reasonable reimbursement levels in the PIP community of providers in Miami-Dade and Broward counties. She testified in her affidavit that the bill was not reasonable, basing her opinion on her “background, training, experience and education in the field of insurance as an adjuster.” She testified that the amount charged for the MRI at issue was above a reasonable rate and greater than the amounts that Provider has accepted for other Medicare patients, workman’s compensation patients and private insurance patients for the same services. 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. In her capacity as an insurance adjuster, Vasquez was 1 In fact, the trial court correctly noted the qualifications of Dr. Millheiser as an expert regarding reasonableness based on the Millheiser affidavit in its June 21, 2016 Order Denying Plaintiff’s Motion to Strike Affidavit of Peter Millheiser,

M.D.

[*5] 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. In fact, the Kahana and Vazquez affidavits are similar although they reach different conclusions. Accordingly, it was an abuse of discretion to accept the Provider’s affidavit while rejecting UAIC’s affidavit.

While a trial court has discretion regarding 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). Notwithstanding that we agree that Provider established a prima facie case for the reasonableness of its bill, we find the trial court erred in rejecting Appellant’s expert’s affidavit (and the Vazquez affidavit) and granting summary judgment on the issue of reasonableness. Taking UAIC’s affidavits 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., 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 [*6] 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. Appellee’s Motion for Attorney’s Fees is DENIED. TRAWICK AND WALSH, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*7] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected]