Third District Court of Appeal
State of Florida
Opinion filed August 4, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-109
Lower Tribunal Nos. 12-665SP & 20-88AP
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United Automobile Insurance Company,
Appellant,
vs.
Progressive Health Services, a/a/o Jean Devaughn,
Appellee.
An Appeal from the County Court for Miami-Dade County, Lawrence
D. King, Judge.
Michael J. Neimand, for appellant.
A Able Advocates – Stuart L. Koenigsberg, P.A., and Stuart L.
Koenigsberg, for appellee.
Before EMAS, LOGUE and SCALES, JJ.
SCALES, J.
United Automobile Insurance Company (“United Automobile”) appeals
a summary judgment and subsequent entry of final judgment in favor of
Progressive Health Services (“Progressive Health”). We reverse.
Progressive Health is the assignee of PIP benefits of United
Automobile’s insured, Jean DeVaughn. After DeVaughn received treatment
from Progressive Health for an injury suffered in a 2010 automobile accident,
Progressive Health billed United Automobile and received payment that
Progressive Health considered insufficient. On January 30, 2012,
Progressive Health filed a breach of contract lawsuit against United
Automobile. Among its defenses, United Automobile raised the
unreasonableness of Progressive Health’s charges pursuant to section
627.736(5) of the Florida Statutes. 1
On June 13, 2019, Progressive Health filed a motion for summary
judgment on the issue of the reasonableness of its charges, accompanied
by a supporting affidavit of its owner, Dr. Jason Levine. United Automobile
filed an opposing summary judgment affidavit of its adjustor, Marcia Lay. In
1
This statute provides that a medical provider “rendering treatment to an
injured person for a bodily injury covered by personal injury protection
insurance may charge the insurer and injured party only a reasonable
amount pursuant to this section for the services and supplies rendered. . . .”
§ 627.736(5)(a)1., Fla. Stat. (2010).
2
her affidavit, Lay provided a description of her training and experience, along
with the data she used in evaluating Progressive Health’s charges.
The trial court agreed with Progressive Health that its charges were
reasonable and granted summary judgment on December 9, 2019. In its
order, the trial court found that Lay’s affidavit “is insufficient as a matter of
law as it solely presents conclusions of law without supporting facts, and said
opinion is therefore speculative.” On March 10, 2020, the trial court entered
final judgment, awarding Progressive Health the sum of $671.24.
Upon our de novo2 review of the record, we conclude that Lay’s
affidavit is neither speculative nor conclusory, and it is sufficient to create a
genuine issue of material fact. See United Auto. Ins. Co. v. Progressive
Rehabilitation and Orthopedic Servs., LLC, No. 3D21-108 (Fla. 3d DCA July
21, 2021); United Auto. Ins. Co. v. Cent. Therapy, Inc., No. 3D21-58 (Fla. 3d
DCA July 28, 2021).
Reversed.
2
See Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031, 1035 (Fla. 3d
DCA 2019).
3