HOCHMAN FAMILY CHIROPRACTIC, INC., A/A/O REBECCA BOSSLEY v. ALLSTATE FIRE & CASUALTY INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: December 14, 2022
• Docket: 21-0343
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 14, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-343 Lower Tribunal No. 15-1532 SP ________________

Hochman Family Chiropractic, Inc. a/a/o Rebecca Bossley, Appellant,

vs.

Allstate Fire and Casualty Insurance Company, Appellee.

An Appeal from the County Court for Miami-Dade County, Milena Abreu, Judge.

Law Office of Chad A. Barr, P.A., and Chad A. Barr (Altamonte Springs), for appellant.

Shutts & Bowen LLP, and Daniel E. Nordby, Jason Gonzalez (Tallahassee), and Garrett A. Tozier (Tampa), for appellee.

Before EMAS, SCALES and LOBREE, JJ.

PER CURIAM. In this appeal, the medical provider, Hochman Family Chiropractic,

Inc., challenges final summary judgment entered in favor of the insurer,

Allstate Fire & Casualty Insurance Company, on a claim that Allstate

breached the applicable personal injury protection policy by failing to pay

benefits due for medical services provided to the insured. We discern no

error and affirm the entry of summary judgment to the extent the trial court

found that the policy at issue provides legally sufficient notice of the insurer’s

election to use the permissive fee schedules identified in section

627.736(5)(a)2. of the Florida Statutes. See Allstate Ins. Co. v. Orthopedic

Specialists, 212 So. 3d 973, 979 (Fla. 2017). We are constrained to

otherwise reverse, however, because the record is devoid of an affidavit or

other summary judgment evidence showing that Allstate paid the proper

amount due under the fee schedules. See Gonzalez v. Citizens Prop. Ins.

Corp., 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019) (“To fulfill his burden [the

summary judgment movant] must offer sufficient admissible evidence to

support his claim of the non-existence of a genuine issue. If he fails to do

this his motion is lost.” (quoting Harvey Bldg., Inc. v. Haley, 175 So. 2d 780,

783 (Fla. 1965))). As such, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.