Third District Court of Appeal State of Florida
Opinion filed July 20, 2022. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D21-0033 & 3D21-0377 Lower Tribunal Nos. 19-63 AP, 10-11718 SP ________________
Star Casualty Insurance Company, Appellant,
vs.
Gables Insurance Recovery, Inc., a/a/o Ana Maria Correa, Appellee.
Appeals from the County Court for Miami-Dade County, Linda Melendez, Judge.
Cole, Scott & Kissane, P.A., and Michael A. Rosenberg and Laurence Cancel (Plantation), for appellant.
The Billbrough Firm, and G. Bart Billbrough, for appellee.
Before SCALES, GORDO and BOKOR, JJ.
BOKOR, J. In these consolidated appeals from a personal injury protection (PIP)
action, Star Casualty Insurance Company appeals a summary final judgment
and attorney fee award entered in favor of Gables Insurance Recovery, Inc.,
as assignee of Star Casualty’s insured, Ana Maria Correa. Star Casualty
alleges that the trial court erred by granting summary judgment due to
genuine issues of material fact concerning whether Correa’s medical bills for
diagnostic imaging procedures were medically necessary and related to the
underlying accident for purposes of section 627.736, Florida Statutes.
Additionally, Star Casualty alleges that the trial court reversibly erred by
striking four affirmative defenses from its amended answer that could have
exempted it from liability for the claim. We agree as to both issues.
FACTS
Correa was involved in a vehicle accident on January 19, 2009 and
sustained injuries. Subsequently, Correa received diagnostic imaging
procedures costing a total of $3,375.00, and Gables, as her assignee,
submitted a claim to the insurer for reimbursement of eighty percent of the
reasonable medical expenses pursuant to section 627.736(1)(a). After the
insurer paid only $400.71 and denied the remainder of the claim, Gables
sued to recover the remaining costs.
2 Gables later moved for summary judgment as to the issues of the
reasonableness, relatedness, and medical necessity of the costs. In
opposition, Star Casualty proffered an affidavit by Edward A. Dauer, M.D.,
opining that the charges were not medically necessary or related to the
accident. This affidavit also noted that three of the imaging procedures
performed on Correa appeared to have been improperly upcoded or
unbundled with other procedures. 1
Based on Dr. Dauer’s affidavit, Star Casualty also amended its answer
to add affirmative defenses asserting that it was exempt from paying the
entire claim pursuant to sections 627.736(4)(h) and 627.736(5)(b)1. because
the three charges were fraudulent, upcoded, or unbundled. Prior to the
summary judgment hearing, Gables voluntarily withdrew its claims for
reimbursement of the three charges Star Casualty based its affirmative
defenses on. Gables then moved to strike the defenses from Star Casualty’s
answer, alleging that the withdrawal of the claims for those three charges
made the corresponding defenses irrelevant and moot.
1 “’Upcoding’” means an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed.” § 627.732(14), Fla. Stat. “’Unbundling’” means an action that submits a billing code that is properly billed under one billing code, but that has been separated into two or more billing codes, and would result in payment greater in amount than would be paid using one billing code.” Id. (15).
3 The trial court, concluding that Dr. Dauer’s affidavit related solely to the
reasonableness of the charges and did not create any genuine dispute of
material fact as to relatedness and necessity, granted partial summary
judgment on the relatedness and necessity issues and granted Gables’
motion to strike the affirmative defenses. Star Casualty then stipulated to
the remaining issue of reasonableness, and the court entered a final
judgment and an award of attorney fees and costs in favor of Gables soon
after. This appeal followed.
ANALYSIS
Summary judgment is appropriate only where no genuine issue of
material fact exists and the movant is entitled to prevail as a matter of law.
See, e.g., Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Under the
applicable standard of review, 2 the courts “must draw every possible
inference in favor of the party against whom summary judgment is sought,”
and “summary judgment should not be granted unless the facts are so
crystallized that nothing remains but questions of law.” Id. “If the evidence
2 The Florida Supreme Court has recently held that appellate courts should utilize the federal standard of review articulated in Celotex Corp. v. Catrett, 447 U.S. 317 (1986) when reviewing summary judgments rendered after May 1, 2021. See In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192, 194 (Fla. 2020). As the judgment appealed here occurred before that date, we instead apply the former standard articulated above.
4 raises any issue of material fact, if it is conflicting, if it will permit different
reasonable inferences, or if it tends to prove the issues, it should be
submitted to the jury as a question of fact to be determined by it.” Id.
With respect to the trial court’s order striking the affirmative defenses,
our review is for abuse of discretion. Am. Integrity Ins. Co. v. Estrada, 276
So. 3d 905, 910 (Fla. 3d DCA 2019). The trial court erred by finding that Dr.
Dauer’s affidavit did not create a genuine issue of material fact. An issue of
fact is “genuine” for summary judgment purposes when a reasonable jury
could potentially return a verdict in favor of the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). A factual dispute
is “material” when it may affect the outcome of the case under the applicable
substantive law. Id. at 248. Because a summary judgment forecloses the
parties’ right to a trial, summary judgment should be granted “[o]nly after it
has been conclusively shown that the party moved against cannot offer proof
to support his position on the genuine and material issues in the cause.” Holl
v. Talcott, 191 So. 2d 40, 47 (Fla. 1966).
Here, the sole basis for Star Casualty’s assertions of a factual dispute
as to relatedness and necessity comes from Dr. Dauer’s affidavit. In the
affidavit, Dr. Dauer opines that the images conducted were “not medically
necessary and not related to the accident of 1/19/2009” because “there were
5 no objective findings and documentation to warrant the ordering of the x-rays
in this case.” The affidavit also speaks to Dr. Dauer’s experience and
qualifications as a medical doctor with over 40 years of radiological
experience, his familiarity with prevailing practices in the industry, and his
methodology for concluding that the ordering of the x-rays here did not
comport with those practices. Because these findings create a genuine
issue of material fact as to relatedness and necessity, the summary
judgment must be reversed and remanded. See State Farm Mut. Auto. Ins.
Co. v. All X-Ray Diagnostic Servs. Corp., 338 So. 3d 376 (Fla.
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Third District Court of Appeal State of Florida
Opinion filed July 20, 2022. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D21-0033 & 3D21-0377 Lower Tribunal Nos. 19-63 AP, 10-11718 SP ________________
Star Casualty Insurance Company, Appellant,
vs.
Gables Insurance Recovery, Inc., a/a/o Ana Maria Correa, Appellee.
Appeals from the County Court for Miami-Dade County, Linda Melendez, Judge.
Cole, Scott & Kissane, P.A., and Michael A. Rosenberg and Laurence Cancel (Plantation), for appellant.
The Billbrough Firm, and G. Bart Billbrough, for appellee.
Before SCALES, GORDO and BOKOR, JJ.
BOKOR, J. In these consolidated appeals from a personal injury protection (PIP)
action, Star Casualty Insurance Company appeals a summary final judgment
and attorney fee award entered in favor of Gables Insurance Recovery, Inc.,
as assignee of Star Casualty’s insured, Ana Maria Correa. Star Casualty
alleges that the trial court erred by granting summary judgment due to
genuine issues of material fact concerning whether Correa’s medical bills for
diagnostic imaging procedures were medically necessary and related to the
underlying accident for purposes of section 627.736, Florida Statutes.
Additionally, Star Casualty alleges that the trial court reversibly erred by
striking four affirmative defenses from its amended answer that could have
exempted it from liability for the claim. We agree as to both issues.
FACTS
Correa was involved in a vehicle accident on January 19, 2009 and
sustained injuries. Subsequently, Correa received diagnostic imaging
procedures costing a total of $3,375.00, and Gables, as her assignee,
submitted a claim to the insurer for reimbursement of eighty percent of the
reasonable medical expenses pursuant to section 627.736(1)(a). After the
insurer paid only $400.71 and denied the remainder of the claim, Gables
sued to recover the remaining costs.
2 Gables later moved for summary judgment as to the issues of the
reasonableness, relatedness, and medical necessity of the costs. In
opposition, Star Casualty proffered an affidavit by Edward A. Dauer, M.D.,
opining that the charges were not medically necessary or related to the
accident. This affidavit also noted that three of the imaging procedures
performed on Correa appeared to have been improperly upcoded or
unbundled with other procedures. 1
Based on Dr. Dauer’s affidavit, Star Casualty also amended its answer
to add affirmative defenses asserting that it was exempt from paying the
entire claim pursuant to sections 627.736(4)(h) and 627.736(5)(b)1. because
the three charges were fraudulent, upcoded, or unbundled. Prior to the
summary judgment hearing, Gables voluntarily withdrew its claims for
reimbursement of the three charges Star Casualty based its affirmative
defenses on. Gables then moved to strike the defenses from Star Casualty’s
answer, alleging that the withdrawal of the claims for those three charges
made the corresponding defenses irrelevant and moot.
1 “’Upcoding’” means an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed.” § 627.732(14), Fla. Stat. “’Unbundling’” means an action that submits a billing code that is properly billed under one billing code, but that has been separated into two or more billing codes, and would result in payment greater in amount than would be paid using one billing code.” Id. (15).
3 The trial court, concluding that Dr. Dauer’s affidavit related solely to the
reasonableness of the charges and did not create any genuine dispute of
material fact as to relatedness and necessity, granted partial summary
judgment on the relatedness and necessity issues and granted Gables’
motion to strike the affirmative defenses. Star Casualty then stipulated to
the remaining issue of reasonableness, and the court entered a final
judgment and an award of attorney fees and costs in favor of Gables soon
after. This appeal followed.
ANALYSIS
Summary judgment is appropriate only where no genuine issue of
material fact exists and the movant is entitled to prevail as a matter of law.
See, e.g., Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Under the
applicable standard of review, 2 the courts “must draw every possible
inference in favor of the party against whom summary judgment is sought,”
and “summary judgment should not be granted unless the facts are so
crystallized that nothing remains but questions of law.” Id. “If the evidence
2 The Florida Supreme Court has recently held that appellate courts should utilize the federal standard of review articulated in Celotex Corp. v. Catrett, 447 U.S. 317 (1986) when reviewing summary judgments rendered after May 1, 2021. See In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192, 194 (Fla. 2020). As the judgment appealed here occurred before that date, we instead apply the former standard articulated above.
4 raises any issue of material fact, if it is conflicting, if it will permit different
reasonable inferences, or if it tends to prove the issues, it should be
submitted to the jury as a question of fact to be determined by it.” Id.
With respect to the trial court’s order striking the affirmative defenses,
our review is for abuse of discretion. Am. Integrity Ins. Co. v. Estrada, 276
So. 3d 905, 910 (Fla. 3d DCA 2019). The trial court erred by finding that Dr.
Dauer’s affidavit did not create a genuine issue of material fact. An issue of
fact is “genuine” for summary judgment purposes when a reasonable jury
could potentially return a verdict in favor of the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). A factual dispute
is “material” when it may affect the outcome of the case under the applicable
substantive law. Id. at 248. Because a summary judgment forecloses the
parties’ right to a trial, summary judgment should be granted “[o]nly after it
has been conclusively shown that the party moved against cannot offer proof
to support his position on the genuine and material issues in the cause.” Holl
v. Talcott, 191 So. 2d 40, 47 (Fla. 1966).
Here, the sole basis for Star Casualty’s assertions of a factual dispute
as to relatedness and necessity comes from Dr. Dauer’s affidavit. In the
affidavit, Dr. Dauer opines that the images conducted were “not medically
necessary and not related to the accident of 1/19/2009” because “there were
5 no objective findings and documentation to warrant the ordering of the x-rays
in this case.” The affidavit also speaks to Dr. Dauer’s experience and
qualifications as a medical doctor with over 40 years of radiological
experience, his familiarity with prevailing practices in the industry, and his
methodology for concluding that the ordering of the x-rays here did not
comport with those practices. Because these findings create a genuine
issue of material fact as to relatedness and necessity, the summary
judgment must be reversed and remanded. See State Farm Mut. Auto. Ins.
Co. v. All X-Ray Diagnostic Servs. Corp., 338 So. 3d 376 (Fla. 3d DCA 2022)
(reversing on identical grounds due to similar affidavit by Dr. Dauer).
On remand, we also find that the trial court’s order striking Star
Casualty’s affirmative defenses must be reversed, as the defenses were not
wholly irrelevant to the claims in the operative complaint. “A party may move
to strike or the court may strike redundant, immaterial, impertinent, or
scandalous matter from any pleading at any time.” Fla. R. Civ. P. 1.140(f).
However, “a Rule 1.140(f) motion to strike ‘should only be granted if material
is wholly irrelevant, can have no bearing on the equities and no influence on
the decision.’” Gonzalez v. NAFH Nat’l Bank, 93 So. 3d 1054, 1057 (Fla. 3d
DCA 2012) (quoting in part Pentecostal Holiness Church, Inc. v. Mauney,
270 So. 2d 762, 769 (Fla. 4th DCA 1972)). Further, “[a]n affirmative defense
6 may not be stricken ‘merely because it appears to a judge that the defendant
may be unable to produce evidence at trial to sustain such a defense.’” Id.
(quoting in part Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg.
Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977)).
The trial court’s reasoning for striking the defenses was based solely
on the fact that the claims for reimbursement of the charges relating to those
defenses had been voluntarily withdrawn. Conversely, Star Casualty claims
that because the defenses asserted fraud, upcoding, and unbundling, such
defenses pertained to the remaining charges. See § 627.736(4)(h), Fla. Stat.
(“Any insurance fraud voids all coverage arising from the claim related to
such fraud under the personal injury protection coverage of the insured
person who committed the fraud, irrespective of whether a portion of the
insured person’s claim may be legitimate . . . .”); Id. (5)(b)1. (providing that
“[a]n insurer . . . is not required to pay a claim or charges” that are, inter alia,
“upcoded, or that is unbundled when such treatment or services should be
bundled”); see also Chiropractic One, Inc. v. State Farm Mut. Auto., 92 So.
3d 871, 874 (Fla. 5th DCA 2012) (“[Section 627.736(5)(b)1.c.] relieves both
the insurer and the insured from paying the claims of ‘any person who
knowingly submits a false or misleading statement relating to the claim or
charges.’ Although ‘claim’ and ‘charges’ are not defined by the PIP statutes,
7 and no cases have been suggested to us that define those terms in the
context of PIP claims, it is logical to conclude that the Legislature established
that dichotomy to be certain that not only the specific individual offensive
‘charges’ were invalidated, but also that the entire ‘claim,’ i.e., the collective
of all charges, was invalidated, as well.”); Bosem v. Com. & Indus. Ins. Co.,
35 So. 3d 944, 945 (Fla. 3d DCA 2010) (concluding that evidence of
insurance fraud necessitated summary judgment in favor of provider as to
entire PIP claim comprising two “separate and distinct” claims for medical
expenses and lost wages, since “[a]llowing for payment of one portion of a
claim would nonsensically allow an insured to engage in a ‘cost-benefit
analysis’ with respect to the contemplation of such fraud,” and “[t]he ‘arising
from’ and ‘relating to’ language [in section 627.736(4)(h)] clearly seeks to
encompass all claims pertaining to a single event resulting in purported
losses”).
The summary judgment is reversed and remanded for further
proceedings consistent with this opinion. Necessarily, we also vacate the
cost judgment as well. See, e.g., Dooley & Mack Constructors, Inc. v.
Buildtec Constr. Grp., Inc., 983 So. 2d 1243, 1244 (Fla. 3d DCA 2008) (“An
award of attorney’s fees and costs predicated on a reversed or vacated final
judgment must also be reversed.” (quotation omitted)).
8 Reversed and remanded.