STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HOLLYWOOD DIAGNOSTIC CENTER, INC. a/a/o JUANITA B. DANCY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
HOLLYWOOD DIAGNOSTIC CENTER, INC.
a/a/o JUANITA B. DANCY,
Appellee.
No. 4D21-202
[October 27, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; John D. Fry, Judge; L.T. Case Nos.
062010SC013978AXXXCE and 062018AP011524AXCCCE.
DeeAnn J. McLemore and Charles W. Hall of Banker Lopez Gassler
P.A., St. Petersburg, Nancy W. Gregoire of Birnbaum, Lippman &
Gregoire, PLLC, Fort Lauderdale, and Christopher L. Kirwan and R. Ryan
Smith of Kirwan Spellacy Danner Watkins & Brownstein, P.A., Fort
Lauderdale, for appellant.
Joseph R. Dawson of Law Offices of Joseph R. Dawson, P.A., Fort
Lauderdale, for appellee.
KUNTZ, J.
State Farm Mutual Automobile Insurance Company appeals the
county court’s final judgment for Hollywood Diagnostic Center, Inc.
State Farm raises three issues on appeal. As explained below, we agree
with State Farm on all three issues and reverse.
First, State Farm argues the court erred when it granted summary
judgment despite the existence of disputed issues of material fact. State
Farm argues Hollywood Diagnostic’s affidavit in support of summary
judgment was conclusory. To support the reasonableness of the prices it
charged, Hollywood Diagnostic relied upon the affidavit and the
deposition testimony of its owner. In the affidavit, the owner asserted
Hollywood Diagnostic’s prices were reasonable, but when questioned at
deposition, the owner did not have actual knowledge of reasonable
market prices.
State Farm argues it was inappropriate to enter summary judgment
based on this conclusory and self-serving testimony. Testimony is
conclusory and self-serving when it amounts no more than a “net
opinion.” Sweet v. Sheehan, 932 So. 2d 365, 369 (Fla. 2d DCA 2006).
We agree that the testimony in this case was conclusory and self-serving.
Second, State Farm maintains the court incorrectly struck the
affidavit of its expert coding witness. We agree. The county court
concluded the witness failed to consider the amount providers were
charging in the community and “did not do the right computation, based
upon the right information.” But that conclusion contradicts the expert’s
affidavit. The expert based his opinion on helping medical billing staff
establish fees; a review of thousands of CMS 1450 and CMS 1500 claims;
experience with Medicare Part B schedules; OIR market investigations of
benefit plans; and a review of explanation of benefits. The expert’s
affidavit also explained her methodology of comparing the Florida
Worker’s Compensation Fee Schedule, Medicaid, and provider charges in
the community and then comparing “those figures to the amount
charged by the provider in question and the amount allowed by the
insurer.” At the summary judgment stage of the proceeding, the court
erred when it struck the coding expert’s affidavit.
Third, State Farm argues the court erred when it granted summary
judgment on the issues of medical necessity and relatedness.
As for medical necessity, State Farm and Hollywood Diagnostic
provided competing expert affidavits. The experts reached different
conclusions about the medical necessity of x-rays. The court erred when
it weighed the credibility of the experts and discounted State Farm’s
expert to decide the summary judgment motion. See Elmore v. Vatrano,
485 So. 2d 888, 891 (Fla. 1st DCA 1986) (“[S]ummary judgment is not
properly granted based on weight of conflicting testimony.”). Finally, we
agree a genuine issue of material fact exists on relatedness. Hollywood
Diagnostic’s affidavit in support of summary judgment stated that the
provider concluded the accident led to the injuries to the patient.
However, State Farm’s competing evidence revealed the insured was in a
bus accident days before the accident in question.
In conclusion, we reverse the county court’s final judgment and
remand for further proceedings consistent with this opinion.
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Reversed and remanded.
KLINGENSMITH and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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