10 Fla. L. Weekly Supp. 49a

Insurance — Personal injury protection — Preferred provider rates — Insurer that failed to adhere to requirements of 627.736(10) to have PPO policy with insured may not reduce benefits to assignee to PPO rates

DRS. SHEER, AHEARN & ASSOC., P.A. (As assignee of DEBORAH SWANN), Plaintiff, v. ALLSTATE INSURANCE COMPANY, An insurance company authorized to do business in Florida, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 2002-3005 SC, Division I. November 22, 2002. Charlotte W. Anderson, Judge. Counsel: Bradley Souders. Anthony J. Parrino.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION AND DENYING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

THIS CAUSE having come before the Court this November 14, 2002 to hearing Plaintiff’s Motion for Partial Summary Disposition and Defendant’s Motion for Summary (with the parties stipulating the sole issue of the hearing to be whether the Defendant may assert the (“Beech Street Network” Affirmative Defense) and the Court having heard from respective counsel, having reviewed the record and otherwise being fully advised, it is hereupon:

ORDERED AND ADJUDGED the Court GRANTS Plaintiff’s Motion for Partial Summary Disposition.

The Court does not change from its previous ruling. See, Jeff Davis, D.C. P.A., (Angela Richards) v. Nationwide Mutual Fire Insurance Company, 8 Fla. L. Weekly Supp. 846b (County Court, 13th Judicial Circuit in and for Hillsborough County, Case No. 2000-17951 SC, Div. I (October 23, 2001). See also, Dukes Chiropractic Health Clinic, P.A., (Tressa Thomas) v. Nationwide Mutual Fire Insurance Company, 9 Fla. L. Weekly Supp. 629b (County Court, 13th Judicial Circuit in and for Hillsborough County, Case No. 2000-17430-SC, Div. J (July 19, 2002) (Judge Gaston Fernandez) (Insurer could not reduce benefits paid to insured’s assignee to PPO rates as it did not have a PPO policy as required by Statute); and Lasswell Chiropractic Center (Lawrence Brindley) v. Nationwide Property & Casualty Company, filed in the County Court, 13th Judicial Circuit, Case No. 2001-09528 SC, Div. H (October 29, 2002) (Judge Cheryl K. Thomas) (same ruling).

By possessing an assignment of benefits, the Plaintiff has proper standing to bring this action. Likewise, the Plaintiff stated a cause of action upon which relief can be granted. See, Brown’s Chiropractic Center, Inc. (Valarie Draeger) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 629c (County Court, 14th Judicial Circuit in and for Bay County, Case No. 01-2944-SP (July 1, 2002) (The Plaintiff has the right to bring this action because of the assignment of the insured’s rights. The rights are not diminished by any contract the Plaintiff may have with Beech Street or any other third party. The rights between the Plaintiff and the Defendant are fixed by the terms of the Defendant’s insurance agreement and by applicable Florida Statutes.

The Court finds the statute is not permissive. The PIP statute is mandatory and is the only means to pay PIP benefits. See, Kirkman Chiropractic, P.A. (Eula Collins) v. Progressive Insurance Company, 9 Fla. L. Weekly Supp. 779a (County Court, 9th Judicial Circuit in and for Orange County, Case No. SCO-01-4442 (August 23, 2002) (The use of the word “may” by the legislature does not make Section 627.736(10) permissive. The use of the word is a word of empowerment that an insurer may enter into PPO arrangements if the requirements of the subsection are met. To allow otherwise, would allow insurance carriers a way to circumvent the Florida law. Additionally, Section 627.736(10) provides the “exclusive” means by which an insurer may pay reduced preferred provider rates for payment of PIP medical benefits. The plain language in this section is clear and unambiguous and requires payment of benefits in accordance with Section 627.736(1)(1) unless the insured elects to use “preferred provider” as defined by Section 627.736(10). See also, Kirkman Chiropractic, P.A., (Jennifer Boyette) v. Nationwide Insurance Company, 9 Fla. L. Weekly Supp. 775a (County Court, 9th Judicial Circuit in and for Orange County, Case No. SCO-01-11900 (August 26, 2002); Charles Tucker, D.C. (Benjamin Tucker) v. Nationwide Mutual Insurance Company, 9 Fla. L. Weekly Supp. 772a (County Court, 7th Judicial Circuit in and for Volusia County, Case No. 2001-35482-COCI, Div. 82 (September 27, 2002); Fishman and Stashak, M.D.’s P.A. d/b/a Gold Coast Orthopaedics (Suzanne Portz) v. Progressive Bayside Insurance Company, 9 Fla. L. Weekly Supp. 64b (County Court, 17th Judicial Circuit in and for Broward County, Case No. 01-11729 COCE 53 (October 24, 2001); David Ice v. Progressive Bayside Insurance Company, 8 Fla. L. Weekly Supp. 262a (County Court, 17th Judicial Circuit in and for Broward County, Case No. 98-12491 COCE 53 (December 12, 2000); and Northwest Broward Orthopaedic Associates (Wendy Resnick) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 723b (County Court, 17th Judicial Circuit in and for Broward County, Case No. 01-018626 COCE 54 (August 20, 2002).

The Court finds the Defendant failed to adhere to Section 627.736(10), Florida Statutes. See, Frank P. Lansisera, D.C. d/b/a The Chiropractic Centre, P.A., (Theresa Anderson) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 63c (County Court, 12th Judicial Circuit in and for Manatee County, Case No. 2001 SC 1594 (October 12, 2001); See also, Dr. Jeffrey N. Shebovksy d/b/a South Orange Chiropractic Center (Glenn Jeffers) v. Peachtree Casualty Insurance Company, 8 Fla. L. Weekly Supp. 246b (County Court, 9th Judicial Circuit in and for Orange County, Case No. CCO 99-9723 Div. 73 (December 20, 2000) (Carrier’s failure to comply with Section 627.736(10) prohibits taking reductions); Fishman and Stashak, M.D.’s P.A. d/b/a Gold Coast Orthopaedics (Leopold Bertrand) v. Progressive Bayside Insurance Company, 9 Fla. L. Weekly Supp. 64b (County Court, 17th Judicial Circuit in and for Broward County, Case No. 01-11619 COCE 50 (October 23, 2001); S.D. Larusso, D.C. (Antoinette Gilkes) v. Nationwide Property and Casualty Insurance Company, 9 Fla. L. Weekly Supp. 63f (County Court, 15th Judicial Circuit in and for Palm Beach County, Case No. 01-9820-RJ (October 22, 2001); Lester Levine D.C. d/b/a Deltona Advanced Wellness Medical Center (Jessica Evans) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 773a (County Court, 7th Judicial Circuit in and for Volusia County, Case No. 2001-11458-CODL (September 4, 2002); and Gregory Harbers, D.C., d/b/a Debary Chiropractic Center (Shirley Brucker) v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 771a (County Court, 7th Judicial Circuit in and for Volusia County, Case No. 2001-11131-CODL (September 4, 2002).

IT IS FURTHER ORDERED AND ADJUDGED the Court DENIES Defendant’s Motion for Summary Disposition on the above issue.

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