FIRST MEDICAL REHAB OF BRADENTON LLC LLC v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY (2022)

In this consolidated appeal,¹ the medical providers appeal final summary judgments entered in favor of the insurers (collectively referred to as “Allstate”), on respective claims that Allstate breached the applicable personal injury protection policies by failing to pay benefits due for medical services provided to the insureds. We discern no error and affirm the entry of summary judgment to the extent the trial court found that the policies at issue provide legally sufficient notice of the insurer's election to use the permissive fee schedules identified in section 627.736(5)(a)2., Florida Statutes (2009).² 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 any summary judgment evidence, showing that Allstate paid pursuant to the fee schedules. See Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1036 (Fla. 3d DCA 2019) (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.” (quoting Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782–83 (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.

FOOTNOTES

1.   These cases, which were consolidated for the purpose of oral argument, are hereby consolidated for opinion purposes as well. See J.M.B. v. State, 776 So. 2d 353, 354 (Fla. 1st DCA 2001) (“Cases may also be consolidated for oral argument, issuance of an opinion, or both.”).

2.   Some of the relevant policies were issued in 2013, and thus the applicable Medicare fee schedules appear in section 627.736(5)(a)1., Florida Statutes (2013), under the 2012 reorganization of the statute. See MRI Assocs. of Tampa v. State Farm Mut. Auto. Ins. Co., 334 So. 3d 577, 582 (Fla. 2021). This renumbering has no impact on our analysis.

LOBREE, J.