       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
                        Petitioner,

                                     v.

            PEMBROKE PINES MRI, INC., a/a/o ELIAS CRUZ,
                          Respondent.

                              No. 4D15-1956

                             [August 12, 2015]

   Petition for writ of certiorari to the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Carlos A. Rodriguez and Sandra
Perlman, Judges; L.T. Case No. CACE 13-022778 AP.

  Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire,
PLLC, Fort Lauderdale, and Andrea C. Mack of Goldstein Law Group, Fort
Lauderdale, for petitioner.

   Todd A. Landau of Todd Landau, P.A., Hallandale Beach, for
respondent.

GROSS, J.

   State Farm seeks second-tier certiorari review of a circuit court
appellate decision affirming a final judgment for the provider in a personal
injury protection (PIP) case. The judgment awarded $887.71 plus interest
and attorney’s fees and costs. The petition argues: (1) that the procedure
the circuit court used in issuing its appellate opinion violates due process;
and (2) that the circuit court’s unelaborated affirmance violated the
requirements of rule 1.510 regarding motions for summary judgment.

    We deny the petition because there is no showing that the circuit court
violated due process, applied the wrong law, or that the unelaborated
affirmance departs from the essential requirements of law resulting in a
miscarriage of justice.

    “Second-tier certiorari is not a second appeal; it is extraordinarily
limited, and narrow in scope.” Advanced Chiropractic & Rehab. Ctr. Corp.
v. United Auto. Ins. Co., 103 So. 3d 866, 868 (Fla. 4th DCA 2012). “Circuit
courts are intended to have final appellate jurisdiction over county court
cases.” Id. Review is limited to whether the circuit court failed to afford
petitioner procedural due process in the appeal or departed from the
essential requirements of law, that is, committed a grievous error which
results in a miscarriage of justice. See Custer Med. Ctr. v. United Auto Ins.
Co., 62 So.3d 1086, 1093-94 (Fla. 2010).

   In 2012, Respondent, Pembroke Pines MRI, Inc. (the Clinic), sued State
Farm in county court based on an assignment of PIP benefits from its
insured. The Clinic billed $3,326 for two MRIs. State Farm paid
$1,773.04, which was 80% of $2,216.30, 200% of the Medicare fee
schedule for the region. The Clinic sought 80% of its full bill. The Clinic
moved for summary judgment contending that its charge was reasonable
and within the customary range. The Clinic argued that State Farm could
not rely on the Medicare fee schedule to determine the reimbursement rate
because the policy did not clearly and unambiguously adopt it. See §
627.736(5)a.2.f., Fla. Stat. (2011) (allowing an insurer to limit
reimbursement to 80% of 200% of the Medicare schedule or 80% of the
maximum amount allowed under workers’ compensation law).1

    The Clinic filed an affidavit from the owner of another MRI facility in
Broward County, and relied on other documents, including bills of other
providers, in support of its motion. State Farm opposed the motion and
filed an affidavit from an actuary who relied on data provided by insurers,
Medicare, and other fee schedules in forming his opinion that the amount
billed was unreasonable. The county court found that the Clinic had made
a prima facie showing of the reasonableness of its charges and that State
Farm had not carried its burden of showing a disputed issue of material
fact. The court granted summary judgment.

    State Farm appealed, and after full briefing, the circuit court ultimately
affirmed with a per curiam opinion without discussion.

   Although State Farm briefly asserts that the circuit court’s procedure
violated due process, its petition provides no explanation of how the
appellate procedure deprived it of due process. The bulk of the petition

1State Farm did not adopt the limitations for reimbursement allowed by section
627.736(5)a.2.f., Florida Statutes (2011), which would have allowed it to cap
reimbursement based on 200% of the Medicare rate. An insurer must expressly
and specifically incorporate the permissive statutory provisions into the policy in
order to limit payment. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141
So. 3d 147 (Fla. 2013); Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So. 3d
63 (Fla. 4th DCA 2011).

                                       -2-
focuses on the argument that the circuit court applied the wrong law,
resulting in a miscarriage of justice. We address that portion of the
petition which contends that the county court violated Florida Rule of Civil
Procedure 1.510 regarding the sufficiency of the summary judgment
evidence.

   “It is fundamental that supporting or opposing affidavits filed in
connection with a motion for summary decree shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence
and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” Castro v. Brazeau, 873 So. 2d 516, 517 (Fla. 4th
DCA 2004) (quoting Harrison v. Consumers Mortg. Co., 154 So. 2d 194,
195 (Fla. 1st DCA 1963)).

   Review of the summary judgment hearing transcript shows that the
court relied on an interrogatory answer—expressing personal knowledge
of what other providers were charging and what insurers were accepting
as reasonable—coupled with the bills showing what other providers
charged for the same services. State Farm does not establish any
departure from the essential requirements of law on this point.

    State Farm also challenges the county court’s rejection of the actuary’s
affidavit for not meeting the standard required by section 90.702, Florida
Statutes (2014), for testimony by experts. The county court concluded
that the actuary’s affidavit was not shown to be based on personal
knowledge or sufficient data and reliable principles.2 The circuit court’s
affirmance of this type of evidentiary ruling is not a violation of a clearly
established principle of law resulting in a miscarriage of justice that can
be addressed on second-tier certiorari.

   The petition for writ of certiorari is denied.

DAMOORGIAN, J., concurs.
WARNER, J., concurs in result only.




2Other  cases have similarly ruled that the actuary, Darrell Spell, who has no
experience or personal knowledge of the operation of an MRI facility, is not
competent to provide an expert opinion as to the reasonableness of charges. See,
e.g., State Farm v. Fla. Wellness & Rehab. Ctr., Inc., CACE13-22796 (Fla. 17th
Cir. June 3, 2015); State Farm Mut. Auto. Ins. Co. v. New Smyrna Imaging LLC,
22 Fla. L. Weekly Supp. 508a (Fla. 7th Cir. 2014); Pembroke Pines Physicians
Assocs. v. State Farm, 21 Fla. L. Weekly Supp. 703a (Fla. Broward Cty. Ct. 2014).

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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