VELO CHIRO FIZIK, INC., A/A/O ALFONSO QUIROGA v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: December 14, 2022
• Docket: 21-0353
• 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. 3D21-353 Lower Tribunal No. 15-3378 SP ________________

Velo Chiro Fizik, Inc. a/a/o Alfonso Quiroga, 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 MILLER, JJ.

PER CURIAM. In this appeal, the medical provider, Velo Chiro Fizik, 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.