18 Fla. L. Weekly Supp. 311a
Online Reference: FLWSUPP 1803THIE
Insurance — Personal injury protection — Coverage — PIP policy, which provides for payment of 80% of reasonable charges, rather than version of PIP statute in effect at time of treatment, which provides for payment of 80% of 200% of Medicare Part B fee schedule, is applicable where no PIP statute was in effect at time of policy execution, and statutory change is substantive
SOUTHEAST MRI, LLC, a Florida Corporation (assignee of Thier, Arline), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-004214 COCE 55. October 15, 2010. Sharon L. Zeller, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ASTO DEFENDANT’S FIRST AFFIRMATIVE DEFENSE (PAYMENT PROPERLY MADEIN ACCORDANCE WITH 2008 FEE SCHEDULE)
THIS CAUSE came before the Court for hearing on September 23, 2010 on Plaintiff’s Motion for Partial Summary Judgment (on the issue of whether Defendant improperly and retroactively applied the 2008 P.I.P. fee schedule to a claim made under a 2007 policy) and the Court, having reviewed the motions; entire Court file; relevant legal authorities; heard argument, and been sufficiently advised in the premises, finds as follows:
Factual Background: This is a P.I.P. case. Plaintiff is an assignee medical provider who rendered a magnetic resonance image (“MRI”) to Arline Thier on February 26, 2008 for injuries sustained in a motor vehicle accident on January 28, 2008. The applicable policy commenced November 19, 2007 (when no P.I.P. statute was in effect and no mandatory P.I.P. insurance was required) and included optional P.I.P. coverage. The relevant policy language indicates P.I.P. medical expenses will be paid at “80% of all reasonable expenses incurred for medically necessary. . .services.”
Defendant issued payment to Plaintiff at less than 80% of the amount charged and has asserted as a defense that it properly paid the Plaintiff’s claim at the 2008 fee schedule pursuant to F.S. s. 627.736(5)(a)(2). Plaintiff moves for partial summary judgment as to the defense asserting 1) that the policy of insurance in question was issued in 2007 (prior to the effective date of the 2008 fee schedule) and therefore the 2008 P.I.P. fee schedule may not be applied as to do otherwise would impair the substantive rights under the policy and 2) that, even if the 2008 statute was applicable, the mandatory language (which provides payment to be made at “80% of all reasonable expenses incurred for medically necessary. . .services”) is controlling as it provides broader coverage than the permissive language of the 2008 P.I.P. statue (which provides that an insurer “may limit reimbursement”).
Conclusion: The Court continues to follow its prior ruling in Ronald J. Trapana, M.D., P.A. (a/a/o Nicola Fazio) v. Peak Property and Casualty Ins. Corp., Case No.: 09-01469 COCE 55 (Broward County Court 2010) [17 Fla. L. Weekly Supp. 223a] which held:
“the Defendant has retroactively affected the substantive rights of the Plaintiff (how much is paid under the insurance contract) by its unilateral, retroactive application of the fee schedule in the 2008 P.I.P. statute (which undisputedly pays less than contract/policy of insurance).”
Id.
Accordingly, the Defendant was required to issue payment at 80% according to the terms of the policy.
[E]ven if Defendant was correct that the 2008 amendment to the Fla. Motor Vehicle law should apply to the services rendered in this case, Plaintiff would still be entitled to final summary judgment based upon the recent decision of State Farm Florida Ins. Co. v. Boyd Nichols and Linda Nichols, et al., 34 Fla. L. Weekly D2275b (Fla. 5th DCA 2009) (holding that the mandatory language of a home owner’s policy providing that the “loss will be payable 60 days after we receive your proof of loss” was controlling over the permissive language of the applicable statutory language provided in F.S. s. 627.707(5)(b) which stated that “the insurer may limit payment. . . until the policyholder enters into a contract for the performance of building stabilization or foundation repairs”) (emphasis added).
In the instant case, the policy of insurance did not incorporate the permissive fee schedule available to the insurer in the 2008 amendment to the Fla. Motor Vehicle law, therefore, based upon Nichols, this Court finds that the mandatory language of the policy of insurance (which states that the Defendant “will pay in accordance with the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefit of the injured person 80% of medical expenses”) would control over the permissive language of F.S. s. 627.736(5)(a)(2)(f) (which provides that “the insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B”).
Miramar Chiropractic Center, LLC d/b/a Miramar Medical Center, Inc. (a/a/o Rony Exantus) v. GEICO Indemnity Co., Case No.: 08-17321 COCE 56 (Broward County Court, Judge Linda Pratt, 2010) [17 Fla. L. Weekly Supp. 845a]; see also OMI Of Orange Park, Inc., (a/a/o Fenner, Barbara) v. State Farm Mutual Automobile Insurance Company, 17 Fla. L. Weekly Supp. 697a (Broward County Court, Judge Robert W. Lee, 2010) and Premier Neurological Treatment Centers, Inc. v. USAA Casualty Insurance Co., 16 Fla. L. Weekly Supp. 1188a (Broward County Court, Judge Peter B. Skolnik, 2009).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is GRANTED. The Defendant was not permitted to apply the permissive fee schedule set forth in the 2008 P.I.P. statute to the Plaintiff’s claim made under a 2007 policy when no P.I.P. statute was in effect. Defendant was required to issue payment at “80% of all reasonable expenses incurred for medically necessary. . .services” as required by the applicable policy language, which provides broader coverage than the permissive language of the 2008 P.I.P. statue.