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 ________________

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 *3 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).

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).