Third District Court of Appeal State of Florida
Opinion filed February 11, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0273 Lower Tribunal No. 20-CA-745-K ________________
Olivia Reyes, Appellant,
vs.
Blue Cross Blue Shield of Florida, Inc., et al., Appellees.
An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge.
Wasson & Associates, Chartered, and Roy D. Wasson; Open Book Appeals and Erin Pogue Newell; Health and Medicine Law Firm, and Maria T. Santi, for appellant.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Christopher J. Stearns and Selena A. Gibson, for appellee Florida Keys Aqueduct Authority.
Before GORDO, BOKOR and GOODEN, JJ.
GORDO, J. ON MOTION FOR REHEARING AND CLARIFICATION
We deny the motion for rehearing and clarification but withdraw our
previous opinion and substitute the following opinion in its stead.
Olivia Reyes (“Reyes”) appeals from a final summary judgment
entered in favor of Florida Keys Aqueduct Authority (“FKAA”). We have
jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm.
I.
FKAA is a governmental entity that operates a self-funded health
insurance plan and serves as a self-insurer for its employees. Reyes, an
FKAA employee, participated in the self-funded plan.
In August of 2019, Reyes underwent elective cosmetic procedures,
including liposuction and abdominoplasty. FKAA’s health insurance plan
excludes coverage for cosmetic surgery and any complications arising from
such procedures. 1
Twelve days after the procedure, Reyes developed complications
related to the surgery. She was hospitalized for over a month and treated
for an infection at the site of the abdominoplasty. Reyes submitted medical
bills for payment under her health insurance plan. FKAA denied coverage,
1 Reyes concedes that her surgery was not covered under the plan.
2 determining the expenses were complications of a noncovered service under
the plan.
Reyes filed the underlying action against FKAA, asserting claims for
breach of contract, breach of fiduciary duty, and third-party beneficiary
breach of contract. FKAA moved for summary judgment. Reyes filed a
response in opposition. Following a hearing, the trial court granted FKAA’s
motion for summary judgment, finding no genuine dispute of material fact.
Reyes moved for rehearing, which the trial court denied. This appeal
followed.
II.
“Our standard of review of an order granting summary judgment is de
novo.” Ottey v. Citizens Prop. Ins. Corp., 299 So. 3d 500, 501 (Fla. 3d DCA
2020) (quoting White v. Ferco Motors Corp., 260 So. 3d 388, 390 (Fla. 3d
DCA 2018)). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Betancourt v. Citizens Prop. Ins.
Corp., 406 So. 3d 1011, 1013 (Fla. 3d DCA 2025) (quoting Fla. R. Civ. P.
1.510(a)). “The court shall state on the record the reasons for granting or
denying the motion.” Id. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of
3 materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations.” Id. (quoting Fla. R. Civ. P.
1.510(c)(1)(A)). “When seeking summary judgment, the moving party must
identify ‘each claim or defense-or the part of each claim or defense-on which
summary judgment is sought.’” Romero v. Midland Funding, LLC, 358
So. 3d 806, 808 (Fla. 3d DCA 2023) (quoting Fla. R. Civ. P. 1.510(a)). “Once
the party moving for summary judgment satisfies this initial burden, the
burden then shifts to the nonmoving party to come forward with evidence
demonstrating that a genuine dispute of material fact exists.” Id.
III.
Reyes argues the trial court erred in granting summary judgment for
FKAA because a genuine dispute of material fact exists as to whether her
hospital treatment resulted from complications of her elective cosmetic
surgery. The subject hospital records, however, specifically document that
she was treated for a post-operative infection at the incision site resulting
from the cosmetic surgery. 2 Because the undisputed evidence establishes
2 While Reyes submitted an affidavit from her cosmetic surgeon, Dr. Jason Altman, in opposition to summary judgment, it failed to identify any admissible evidence creating a genuine dispute of material fact. See Passariello v. Bank of New York Mellon, 347 So. 3d 446, 448 (Fla. 3d DCA 2022) (“[A]ffidavits opposing summary judgment must identify admissible evidence and not be based on mere supposition or belief[.]” (citing Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019)));
4 that Reyes’s hospitalization stemmed from complications of the cosmetic
surgery, FKAA was entitled to summary judgment as a matter of law. See
Tarkoff v. Schmunk, 117 So. 2d 442, 444 (Fla. 2d DCA 1959) (“We have held
that affidavits on motions for summary judgments should set forth admissible
evidence.”); Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035-
38 (Fla. 3d DCA 2019) (“Summary judgment is designed to test the
sufficiency of the evidence to determine if there is sufficient evidence at issue
to justify a trial . . . . [A] party should not be put to the expense of going
through a trial, where the only possible result will be a directed verdict. . . .
[T]he affidavits opposing summary judgment must identify admissible
evidence that creates a genuine issue of material fact. The purpose of this
requirement is to ensure that there is an admissible evidentiary basis for the
case rather than mere supposition or belief. The focus is on whether the
affidavits show evidence of a nature that would be admissible at trial . . . .
The [Appellants’] affidavits opposing summary judgment did not create a
genuine issue of material fact to defeat [Appellee’s] summary judgment
motion. Accordingly, summary judgment was properly granted.” (internal
Citizens Prop. Ins. Corp. v. Zamanillo, 388 So. 3d 912, 914 (Fla. 3d DCA 2024) (“If the evidence presented by the nonmovant is merely colorable, or is not significantly probative, summary judgment may be granted.” (quoting In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 193 (Fla. 2020))).
5 quotation marks and citations omitted)); Chowdhury v. BankUnited, N.A.,
366 So. 3d 1130, 1134 (Fla. 3d DCA 2023) (“Our new summary judgment
standard mirrors the standard for a directed verdict such that the inquiry
focuses on ‘whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” (quoting In re Amends. to Fla. Rule of Civ. Proc.
1.510, 309 So. 3d 192, 192 (Fla. 2020))).
IV.
Reyes further argues she received emergency medical services and
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Third District Court of Appeal State of Florida
Opinion filed February 11, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-0273 Lower Tribunal No. 20-CA-745-K ________________
Olivia Reyes, Appellant,
vs.
Blue Cross Blue Shield of Florida, Inc., et al., Appellees.
An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge.
Wasson & Associates, Chartered, and Roy D. Wasson; Open Book Appeals and Erin Pogue Newell; Health and Medicine Law Firm, and Maria T. Santi, for appellant.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Christopher J. Stearns and Selena A. Gibson, for appellee Florida Keys Aqueduct Authority.
Before GORDO, BOKOR and GOODEN, JJ.
GORDO, J. ON MOTION FOR REHEARING AND CLARIFICATION
We deny the motion for rehearing and clarification but withdraw our
previous opinion and substitute the following opinion in its stead.
Olivia Reyes (“Reyes”) appeals from a final summary judgment
entered in favor of Florida Keys Aqueduct Authority (“FKAA”). We have
jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm.
I.
FKAA is a governmental entity that operates a self-funded health
insurance plan and serves as a self-insurer for its employees. Reyes, an
FKAA employee, participated in the self-funded plan.
In August of 2019, Reyes underwent elective cosmetic procedures,
including liposuction and abdominoplasty. FKAA’s health insurance plan
excludes coverage for cosmetic surgery and any complications arising from
such procedures. 1
Twelve days after the procedure, Reyes developed complications
related to the surgery. She was hospitalized for over a month and treated
for an infection at the site of the abdominoplasty. Reyes submitted medical
bills for payment under her health insurance plan. FKAA denied coverage,
1 Reyes concedes that her surgery was not covered under the plan.
2 determining the expenses were complications of a noncovered service under
the plan.
Reyes filed the underlying action against FKAA, asserting claims for
breach of contract, breach of fiduciary duty, and third-party beneficiary
breach of contract. FKAA moved for summary judgment. Reyes filed a
response in opposition. Following a hearing, the trial court granted FKAA’s
motion for summary judgment, finding no genuine dispute of material fact.
Reyes moved for rehearing, which the trial court denied. This appeal
followed.
II.
“Our standard of review of an order granting summary judgment is de
novo.” Ottey v. Citizens Prop. Ins. Corp., 299 So. 3d 500, 501 (Fla. 3d DCA
2020) (quoting White v. Ferco Motors Corp., 260 So. 3d 388, 390 (Fla. 3d
DCA 2018)). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Betancourt v. Citizens Prop. Ins.
Corp., 406 So. 3d 1011, 1013 (Fla. 3d DCA 2025) (quoting Fla. R. Civ. P.
1.510(a)). “The court shall state on the record the reasons for granting or
denying the motion.” Id. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of
3 materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations.” Id. (quoting Fla. R. Civ. P.
1.510(c)(1)(A)). “When seeking summary judgment, the moving party must
identify ‘each claim or defense-or the part of each claim or defense-on which
summary judgment is sought.’” Romero v. Midland Funding, LLC, 358
So. 3d 806, 808 (Fla. 3d DCA 2023) (quoting Fla. R. Civ. P. 1.510(a)). “Once
the party moving for summary judgment satisfies this initial burden, the
burden then shifts to the nonmoving party to come forward with evidence
demonstrating that a genuine dispute of material fact exists.” Id.
III.
Reyes argues the trial court erred in granting summary judgment for
FKAA because a genuine dispute of material fact exists as to whether her
hospital treatment resulted from complications of her elective cosmetic
surgery. The subject hospital records, however, specifically document that
she was treated for a post-operative infection at the incision site resulting
from the cosmetic surgery. 2 Because the undisputed evidence establishes
2 While Reyes submitted an affidavit from her cosmetic surgeon, Dr. Jason Altman, in opposition to summary judgment, it failed to identify any admissible evidence creating a genuine dispute of material fact. See Passariello v. Bank of New York Mellon, 347 So. 3d 446, 448 (Fla. 3d DCA 2022) (“[A]ffidavits opposing summary judgment must identify admissible evidence and not be based on mere supposition or belief[.]” (citing Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019)));
4 that Reyes’s hospitalization stemmed from complications of the cosmetic
surgery, FKAA was entitled to summary judgment as a matter of law. See
Tarkoff v. Schmunk, 117 So. 2d 442, 444 (Fla. 2d DCA 1959) (“We have held
that affidavits on motions for summary judgments should set forth admissible
evidence.”); Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035-
38 (Fla. 3d DCA 2019) (“Summary judgment is designed to test the
sufficiency of the evidence to determine if there is sufficient evidence at issue
to justify a trial . . . . [A] party should not be put to the expense of going
through a trial, where the only possible result will be a directed verdict. . . .
[T]he affidavits opposing summary judgment must identify admissible
evidence that creates a genuine issue of material fact. The purpose of this
requirement is to ensure that there is an admissible evidentiary basis for the
case rather than mere supposition or belief. The focus is on whether the
affidavits show evidence of a nature that would be admissible at trial . . . .
The [Appellants’] affidavits opposing summary judgment did not create a
genuine issue of material fact to defeat [Appellee’s] summary judgment
motion. Accordingly, summary judgment was properly granted.” (internal
Citizens Prop. Ins. Corp. v. Zamanillo, 388 So. 3d 912, 914 (Fla. 3d DCA 2024) (“If the evidence presented by the nonmovant is merely colorable, or is not significantly probative, summary judgment may be granted.” (quoting In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 193 (Fla. 2020))).
5 quotation marks and citations omitted)); Chowdhury v. BankUnited, N.A.,
366 So. 3d 1130, 1134 (Fla. 3d DCA 2023) (“Our new summary judgment
standard mirrors the standard for a directed verdict such that the inquiry
focuses on ‘whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” (quoting In re Amends. to Fla. Rule of Civ. Proc.
1.510, 309 So. 3d 192, 192 (Fla. 2020))).
IV.
Reyes further argues she received emergency medical services and
that the Patient Protection and Affordable Care Act (“PPACA”) mandates
coverage for such services. The PPACA identifies ten “general categories”
of mandatory “[e]ssential health benefits,” including “[e]mergency services.”
42 U.S.C. § 18022(b)(1)(B). Those essential health benefit requirements,
however, do not extend to self-funded health plans maintained by
governmental entities. See 42 U.S.C. § 18021(b)(1)(A)–(B) (providing an
“exception for self-insured plans” from compliance with the Act). It is
undisputed that FKAA is a governmental entity that operates a self-funded
health insurance plan. Because there is no genuine dispute of material fact
that the PPACA does not require FKAA’s plan to provide coverage for
emergency medical services, the trial court properly entered summary
6 judgment in FKAA’s favor. See Insight for Living Ministries v. Burwell, No.
4:14-CV-675, 2014 WL 6706921, at *4 (E.D. Tex. Nov. 25, 2014) (“The
PPACA exempts certain health plans[.]”); Le v. Unum Ins. Co. of Am., 336
F. Supp. 3d 642, 656 (W.D. La. 2018) (holding that a plan falls within the
“governmental plan exemption” where it was maintained by a qualifying
governmental entity); Advanced Women’s Health Ctr., Inc. v. Anthem Blue
Cross Life & Health Ins. Co., No. 13-CV-01145, 2014 WL 3689284, at *8
(E.D. Cal. July 23, 2014) (recognizing that “governmental plans” are not
subject to PPACA provisions governing employee benefit plans).3
Affirmed.
3 To the extent Reyes raises new issues for the first time on appeal regarding FKAA’s compliance with state law, those issues were not presented below. Thus, they are deemed waived and not properly preserved for appellate review. See Van Lent v. Everglades Found., Inc., 400 So. 3d 64, 74–75 (Fla. 3d DCA 2024) (“We begin our analysis with a basic tenet of Florida appellate review that it is improper to raise for the first time on appeal matters which should have been raised to the trial court.”).