STATE FARM FIRE & CASUALTY

v.

GABLES INSURANCE RECOVERY, FELIX CABRERA

Before: TRAWICK, WALSH and SANTOVENIA, JJ. Filing # 116989992 E-Filed 11/19/2020 04:19:07 Felix Cabrera, an insured of State Farm Fire & Casualty Company (“State Farm”), was allegedly injured in an automobile collision and received treatment from All X-Ray Diagnostic Services Corp. (“All X-Ray”). Cabrera assigned his benefits under his State Farm policy (the “Policy”) to All X-Ray, which subsequently assigned the benefits to Gables Insurance Recovery, Inc. (“Gables” or “Provider”). State Farm reimbursed All X-Ray the amounts State Farm determined to be reasonable for the x-rays, but not the full amount of All X-Ray’s bills. Gables filed suit alleging that State Farm failed to pay personal injury protection (“PIP”) benefits claimed due under the Policy for five x-rays. State Farm denied that: the x-rays were medically necessary, the x-rays were related to the insured’s accident or injuries, and the charges were reasonable. After two partial summary judgments were entered in favor of Provider on the issues of relatedness and reasonableness, only the issue of medical necessity remained. The case proceeded to jury trial on that sole issue in August, 2019, after which a verdict was returned in favor of the Provider. State Farm appeals the final judgment entered by the trial court on September 5, 2019. The standard of review for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary [*3] Page 3 of 7 judgment is proper if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Id. “[T]he court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Id. Gables had the burden of establishing that the charges for the services rendered were reasonable, related and necessary. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002); Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998). Gables relied upon the affidavit of Sabino Ferro (“Ferro”), the Senior Corporate Officer at All X-Ray as to reasonableness and the affidavit of Franklin D. Saumell, MD as to necessity. State Farm relied on the affidavit of Michael S. Propper, M.D. to dispute relatedness, reasonableness and necessity. The trial court accepted the affidavits of Ferro and Saumell submitted by Provider, but rejected the Propper affidavit offered by State Farm, finding that it failed to create a disputed issue of fact because it was conclusory and not based on sufficient facts or data. Summary judgment was thus granted in favor of the Provider on the issue of reasonableness by order dated June 22, 2016. The court initially denied the Provider’s summary judgment motion as to the other two issues of relatedness and [*4] Page 4 of 7 necessity, but by order dated October 14, 2016 on motion for reconsideration granted a partial summary judgment in favor of Provider on relatedness. Analysis Despite State Farm’s not electing to use the Medicare Part B Fee Schedule in its policy to limit its reimbursements under Section 627.736(5)(a)(2), Fla. Stat., it is not precluded from having an opportunity to litigate the reasonableness of Gables’ bill under Section 627.736(5)(a)(1), Fla. Stat.. See Geico Gen. Ins. Co. v. Virtual Imaging, 141 So. 3d 147, 155-56 (Fla. 2013); Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, 202 So. 3d 437, 438 (Fla. 5th DCA 2016). Under Section 627.736(5)(a)(1), the Medicare Part B Fee Schedule may be utilized as a “factor” in determining reasonableness of the fees submitted for payment. As such, Dr. Propper’s affidavit, which was based on consideration of the Medicare Part B Fee Schedule and other factors, was erroneously rejected by the trial court. As this panel and the majority of prior panels from this court have consistently found, if an affidavit creates even a scintilla of a dispute as to a material fact, particularly when the affidavit is submitted by the non-moving party, it is an abuse of discretion to reject the affidavit. Thus, it was error for the trial court here to grant summary judgment on behalf of the Provider as the Propper affidavit was sufficient to raise disputed issues of material fact precluding summary judgment. See State [*5] Page 5 of 7 Farm Mutual Ins. Co. v. Gables Insurance Recovery a/a/o Alexis Revollo, 2017 [*158] AP-01 (Fla. 11th Cir. Ct. Aug. 13, 2020); United Auto. Ins. Co. v. Miami-Dade MRI a/a/o Bermudez, 2018-164-AP-01 (Fla. 11th Cir. Ct. June 3, 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. 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 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). Following the partial summary judgments entered in favor of Provider, the case proceeded to trial before a jury on the sole issue of whether the x-rays were medically necessary. At issue in this appeal is the correctness of the verdict form. State Farm argues that it was error for the trial court to use a verdict form which was inconsistent with the jury instructions, the parties’ presentations and the evidence. The jury was instructed that Gables was seeking to recover personal injury benefits for “x-rays [*6] Page 6 of 7 services” rendered at All X-Ray that it claimed were medically necessary. The verdict form asked the jury to answer the following question: Are any of the x-rays services medically necessary? (emphasis added). The jury responded “yes”. State Farm correctly points out that in answering “yes”, the jury could have determined that only one x-ray was medically necessary, while the issue the jury was tasked with determining was whether the x-rays were medically necessary. We agree that the verdict form was erroneous. “Any” cannot mean “all”. Scalia and Garner, Reading Law: The Interpretation of Legal Texts (2012). Furthermore, a verdict that is not in conformance with the jury instructions is clearly defective. See Warth v. State Farm Fire and Casualty Company, 695 So. 2d 906, 907 (Fla. 2d DCA 1997) (reversing verdict where verdict form was confusing and misleading); Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992); Wilson v. State, 566 So. 2d 36, 37 (Fla. 4th DCA 1990); Robertson v. State, 532 So. 2d 90 (Fla. 4th DCA 1988); Montgomery Ward & Co., Inc. v. Hoey, 486 So. 2d 1368 (Fla. 5th DCA 1986) (“The inconsistencies between the instructions and the verdict form in regard to punitive damages are too confusing to resolve short of a new trial.”); Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986). Accordingly, for the foregoing reasons, the June 22, 2016 and October 14, 2016 partial summary judgments and the September 5, 2019 final judgment entered below are hereby REVERSED, and this cause is REMANDED to the trial court for [*7] Page 7 of 7 further proceedings consistent with this opinion. Appellant’s Motion for Attorney’s Fees is conditionally granted upon satisfying its proposal for settlement and the trial court’s determination of its sufficiency and enforceability. The case is remanded to the lower court to determine the amount of a reasonable fee. Appellee’s Motion for Attorney’s Fees is DENIED. TRAWICK, WALSH and SANTOVENIA, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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