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Berrios v. Deuk Spine

Florida Court of Appeal, Fifth District

November 18, 2011

Michael BERRIOS, Appellant,
v.
Deuk SPINE, et al., Appellee.

Rehearing and Rehearing En Banc Denied Jan. 10, 2012.

Dale T. Gobel and Kimberly D. Webb, of Gobel Flakes, LLC, Orlando, for Appellant.

Martin J. Jaffe and Keith R. Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellee, Krystal Pennea.

Kimberly P. Simoes, of The Simoes Law Group, P.A., DeLand, for Appellees, Millennium

Page 968

Medical Management, LLC a/k/a Deuk Spine, et al.

Bard D. Rockenbach and Nichole J. Segal, of Burlington & Rockenbach, P.A., West Palm Beach, Amicus Curiae, for Florida Justice Association.

PER CURIAM.

Michael Berrios [" Berrios" ] timely appeals the trial court's order dismissing with prejudice his counterclaim against Krystal M. Pennea [" Pennea" ] and Millennium Medical Management, LLC, a/k/a Deuk Spine Institute, Deuk Spine Institute, M.D., and Deuk Spine [" Deuk Spine" ]. Berrios contends that the trial court erred by dismissing his counterclaim with prejudice. We affirm.

On May 4, 2009, Pennea brought suit against Berrios, alleging that Berrios " negligently operated and/or maintained [a] motor vehicle so that it collided with [her] motor vehicle," causing her to be injured. She received treatment for certain of her injuries from Deuk Spine. Among his affirmative defenses, Berrios asserted:

8. Lastly, Plaintiff [sic] denies Plaintiff's damages to the extent that she claims payment on invoices that are not lawful or not properly payable as provided by Florida Law. More specifically, Defendant denies that the statements submitted for The Deuk Spine Institute are properly payable.

Berrios also filed a " counterclaim," seeking to make Deuk Spine a party to the lawsuit for declaratory relief. Berrios alleged in pertinent part:

8. As part of the underlying claim for damages related to the accident, Pennea is requesting compensation for the charges from Deuk Spine Institute. Pennea's counsel executed a " Letter of Protection" relating to the charges submitted by the Deuk Spine Institute, making the Deuk Spine Institute an interested party in this litigation, as the Deuk Spine Institute has a contingent interest in this litigation.
9. Deuk Spine Institute allegedly billed Pennea in excess of $50,000 for various treatments and tests. See the related invoices attached hereto as Exhibit " A" and incorporated herein as if fully restated.
10. Berrios questions whether or not the bills (and the services underlying those bills) submitted by Deuk Spine Institute were in compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services, whether the bills were related to the accident underlying this action, and whether the charges constitute reasonable charges for which either Berrios or Pennea should be responsible.

Berrios further alleged:

16. Defendant believes that the bills submitted by Deuk are not compensable, represent bills for services that were not performed, and represent an unreasonable and excessive fee for the service performed. Defendant believes that neither Berrios nor Pennea should be responsible for any of the billed charges, or alternatively, ...

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