UNITED AUTOMOBILE INSURANCE COMPANY v. MILLENNIUM RADIOLOGY, LLC, D/B/A MILLENNIUM OPEN MRI, A/A/O YADIRA BOUDIER

Third District Court of Appeal
State of Florida

Opinion filed February 23, 2022.
Not final until disposition of timely filed motion for rehearing.

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No. 3D21-430
Lower Tribunal No. 12-15613 SP
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United Automobile Insurance Company,
Appellant,

vs.

Millennium Radiology, LLC, d/b/a Millennium Open MRI, a/a/o
Yadira Boudier,
Appellee.

An Appeal from the County Court for Miami-Dade County, Ayana
Harris, Judge.

Michael J. Neimand, for appellant.

David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Marks
& Fleischer, P.A., and Gary Marks (Fort Lauderdale), for appellee.

Before FERNANDEZ, C.J., and EMAS and BOKOR, JJ.

EMAS, J.
 Appellant and defendant below, United Automobile Insurance

Company, challenges a final summary judgment entered in favor of appellee

and plaintiff below, medical provider Millennium Radiology, LLC, as assignee

of Yadira Boudier.

For purposes of this appeal, the relevant facts—save one—are

undisputed. Ms. Boudier, who was insured by United Auto, was involved in

an accident. Boudier received treatment from, and assigned her rights to,

Millennium Radiology, which later filed a complaint against United Auto for

breach of contract and for PIP benefits arising from that accident.

An issue in dispute was the “reasonableness” of the amount charged

for an MRI that Millennium Radiology performed on Boudier. See §§

627.736(1)(a), (5)(a), Fla. Stat. (2010).

United Auto disputed the reasonableness of the amount charged by

Millennium Radiology. In response, Millennium Radiology contended United

Auto was precluded by principles of offensive collateral estoppel from

contesting the reasonableness of the MRI procedure because, in prior

unrelated PIP lawsuits between Millennium Radiology and United

Automobile, one or more juries had made an affirmative finding that the

amount charged for the MRI procedure was reasonable. United Auto

asserted that the application of collateral estoppel was improper because the

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parties were not identical: in each of those prior PIP lawsuits, Millennium

Radiology received an assignment from a different insured of United Auto.

The trial court agreed with Millennium Radiology and applied collateral

estoppel offensively, precluding United Auto from challenging the

reasonableness of the amount charged for the MRI procedure performed on

Boudier.

We recently decided this precise issue in three consolidated appeals

(3D21-205, 3D21-272 and 3D21-320) involving United Automobile

Insurance Company and Millennium Radiology, LLC. See United Auto.

Insur. Co. v. Millennium Radiology, LLC, 47 Fla. L. Weekly D175, 2022 WL

107604 (Fla. 3d DCA Jan. 12, 2022), where we held:

The real party in interest is Millennium as an assignee, not in its
individual capacity as the provider of the medical services for
each insured. See Nationwide Terminals, Inc. v. MC Constr.
Grp., Inc., 964 So. 2d 705, 706 (Fla. 3d DCA 2007).

Millennium’s “identity” is not the same in each of these cases
against United Auto; Millennium draws its identity from its
assignor from case to case. The identity element of collateral
estoppel, therefore, is not satisfied. See E.C. v. Katz, 731 So. 2d
1268, 1269 (Fla. 1999) (holding that, in Florida, identity and
mutuality of parties – that both parties be identical and be
mutually bound by the prior judgment – must be established for
collateral estoppel to apply); see also Nationwide Terminals, Inc.,
964 So. 2d at 706 (holding that a party suing in the capacity of
an assignee is not a party suing in its individual capacity).

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Id. at *3. 1

While we recognize the trial court did not have the benefit of that

opinion at the time it entered judgment in the instant case, 2 we nevertheless

reverse the final summary judgment because the “real party in interest is

Millennium as an assignee, not in its individual capacity as the provider of

the medical services for each insured.” Id. Under such circumstances, there

was no identity of the parties and thus, the application of collateral estoppel

was erroneous.

Reversed and remanded.

1
We also recently reversed final summary judgments on the same basis in
United Auto. Insur. Co. v. Millennium Radiology, LLC, a/a/o Sandra Muhlig,
3D21-813; United Auto. Insur. Co. v. Millennium Radiology, LLC, a/a/o Angel
Bauza, 3D21-717; and United Auto. Insur. Co. v. Millennium Radiology, LLC,
a/a/o Maria D. Rodriguez, 3D21-280.
2
Generally, an appellate court must apply decisional law as it exists at the
time of the appeal. See, e.g., Lowe v. Price, 437 So. 2d 142, 144 (Fla. 1983)
(holding: “Decisional law and rules in effect at the time an appeal is decided
govern the case even if there has been a change since time of trial.”); Bank
of New York Mellon Corp. v. Anton, 230 So. 3d 502, 503 n.1 (Fla. 3d DCA
2017).

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