10 Fla. L. Weekly Supp. 564b
Insurance — Personal injury protection — Fee schedule — Magnetic resonance imaging — Revised MRI fee schedule set in Section 627.736(5)(b)(5) became effective when signed into law — Summary judgment entered in favor of insurer that paid amounts set by statute for MRI performed after effective date of statute — Civil procedure — Amended complaint filed without leave of court after defendant had filed responsive pleading is stricken
LESTRANGE NILE (Jeffrey Thomas), Plaintiff(s), vs. ALLSTATE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-7196 COCE 49. May 21, 2003. Order on Defendant’s Ore Tenus Motion to Strike Plaintiff’s Amended Complaint. May 21, 2003. Kathleen D. Ireland, Judge. Counsel: Robert J. Cooney, Miami, for Plaintiff. Rafael I. Katz, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood, for Defendant.
ORDER ON DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before this Court upon the Defendant’s Motion for Final Summary Judgment, and this Court having reviewed the file, having heard the oral arguments of counsel, and being otherwise fully advised in the premises, this Court finds as follows:
SUMMARY OF RELEVANT FACTS
Plaintiff, NILE LESTRANGE, M.D. (hereinafter “LESTRANGE”) alleges that it performed MRI services for Defendant, ALLSTATE INSURANCE COMPANY’S (hereinafter “ALLSTATE”) insured on August 21, 2001. Specifically, LESTRANGE alleges that it performed a cervical and lumbar MRI. LESTRANGE submitted charges in the amount of $1,375.00 for each of these MRI’s for payment by ALLSTATE. ALLSTATE insured LESTRANGE’S patient, Jeffrey Thomas, pursuant to a personal injury protection policy of insurance. The policy of insurance and FS 627.736 require that ALLSTATE pay for eighty percent of the reasonable, medically necessary charges for medical treatment or services related to injuries its insured sustained as the result of the ownership, maintenance or use of an automobile.
ALLSTATE paid $902.46 for the cervical MRI (80% of $1,218.58) and $975.10 for the lumbar MRI (80% of $1218.88). ALLSTATE maintains that it paid the proper amounts for these MRI services because the charges submitted were subject to the fee limitations imposed by FS 627.736(5)(b)(5). ALLSTATE believes that FS 627.736(5)(b)(5) took effect on June 19, 2001, the date that Chapter 2001-271, Florida Laws was signed by Governor Jeb Bush. LESTRANGE claims that these fee limitations were not in effect on the date these MRI’s were performed and that FS 627.736(5)(b)(5) became effective on October 1, 2001, not June 19, 2001.
ORDER
1. Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
2. The issue in this case is whether the MRI Fee Schedule set forth in Chapter 2001-271, Florida Laws, became effective immediately upon becoming law, on June 19, 2001, or four months later, on October 1, 2001.
3. Chapter 2001-271, Florida Laws, was signed into law on June 19, 2001.
4. The plain and unambiguous language of Florida Statute § 627.736(5)(b)(5) states that this subsection became effective upon “this act,” Chapter 2001-271, Florida Laws, “becoming a law,” or on June 19, 2001.
5. Even if it were determined that the language of Florida Statute § 627.736(5)(b)(5) was ambiguous, the applicable rules of statutory construction, (a) that all words in a statute must be given effect; (b) that the specific controls over the general; and (c) that “last in time” controls, all mandate that §627.736(5)(b)(5) became effective on June 19, 2001.
6. This Court has reviewed the applicable case law cited by the parties, and this court agrees with and follows the holding in State Farm Mutual Automobile Insurance Company v. West Gables Open MRI Services, Inc., 28 Fla. L. Weekly D615 (Fla. 3d DCA 2003). In that case, the Third District Court of Appeal ruled that the language of §627.736(5)(b)(5) was unambiguous, and that even if it was ambiguous, the rules of statutory construction would still lead to the conclusion that the MRI fee schedule became effective on June 19, 2001.
7. Final Judgment is hereby entered in favor of Defendant, ALLSTATE.
8. It is adjudged that Plaintiff, LESTRANGE, take nothing by this action and that Defendant, ALLSTATE shall go hence without day.
9. The Court retains jurisdiction to award attorney’s fes and costs to Defendant, ALLSTATE.
__________________
ORDER ON DEFENDANT’S ORE TENUS MOTION TO STRIKE PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE having come before the Court upon Defendant’s Ore Tenus Motion to Strike Plaintiff’s Amended Complaint and this Honorable Court having considered the argument of the parties, the record and being otherwise duly advised in the premises, it is herevt
ORDERED AND ADJUDGED AS FOLLOWS:
1. Plaintiff’s Amended Complaint is striken.
2. There was a clerical error in the presentation of Plaintiff’s Amended Complaint to the clerk of the court.
3. Plaintiff’s Amended Complaint should have been titled “Proposed Amended Complaint”. Instead, the Amended Complaint was docketed as having been filed on March 21, 2003.
4. Defendant filed a responsive of pleading prior to that date. Therefore, plaintiff must seek leave of court to file an Amended Complaint.
5. Plaintiff shall set a hearing on its Motion for Leave to Amend Complaint.
* * *
