THE PERSONAL INJURY CLINIC, INC., A/A/O TATIANA RODRIGUEZ v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: October 6, 2022
• Docket: 21-0346
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 6, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0346 Lower Tribunal No. 14-2020-SP ________________

The Personal Injury Clinic, Inc. a/a/o Tatiana Rodriguez, Appellant,

vs.

Allstate Fire & 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, Daniel E. Nordby, Jason Gonzalez (Tallahassee), and Garrett A. Tozier (Tampa), for appellee.

Before FERNANDEZ, C.J., and SCALES, and MILLER, JJ.

PER CURIAM. In this appeal, the medical provider, The Personal Injury Clinic, 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., Florida

Statutes (2012). 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) (quoting Harvey Bldg., Inc. v. Haley,175 So. 2d

780, 783 (Fla. 1965)) (explaining that 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”). 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.