11 Fla. L. Weekly Supp. 164b
Insurance — Personal injury protection — Magnetic resonance imaging — Effective date of section 627.736(5)(b)5, which places cap on amounts that may be charged to PIP insurers and insureds for MRI services became effective June 19, 2001 — Plaintiff’s ore tenus motion for leave to amend complaint is denied as untimely
A-1 MOBILE MRI, INC. a/a/o Miguel Diaz, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-02844 SP 05 06. December 12, 2003. Roger A. Silver, Judge. Counsel: Robert J. Cooney, Cooney and Associates, P.A., for Plaintiff. Frank S. Goldstein, Hengber, Goldstein & Ray, P.A., Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on November 5, 2003, on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Summary Judgment and after argument of counsel and presentation of all relevant documents and the Court otherwise being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED, as follows:
Factual History
The Plaintiff, A-1 MOBILE MRI, INC. (hereinafter A-1,) filed a breach of contract/P.I.P. action against the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, (hereinafter “PROGRESSIVE”). Since there are no genuine issues of material fact, PROGRESSIVE is entitled to Final Summary Judgment as a matter of law. See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
On September 5, 2001, PROGRESSIVE insured, MIGUEL DIAZ, had a cervical spine MRI performed and billed by A-1. A-1 submitted a Health Insurance Claim Form 1500 (hereinafter “HICF”) to PROGRESSIVE, seeking $1,800.00 for the cervical spine MRI. Upon receipt of A-1’s HICF, PROGRESSIVE issued a check to A-1, along with an explanation of benefits, setting forth PROGRESSIVE’s basis for the payment. In determining the amount to be paid to A-1, PROGRESSIVE paid pursuant to F.S. 627.736(5)(b)5 (2001). A-1 was not satisfied with PROGRESSIVE’s payment and filed the subject lawsuit contending that F.S. 627.736(5)(b)(5) was not effective at the time that PROGRESSIVE tendered their payment.
Main Issue
Whether F.S. 627.736(5)(b)5 became effective June 19, 2001 or October 1, 2001.Other Issues Decided By Court
Whether the Plaintiff was barred from litigating issues and causes of action not specifically set forth in his Complaint, such that the Defendant was not put on notice of those issues and causes of action.
Whether granting the Plaintiff’s Motion for Leave to Amend Complaint, raised ore tenus, for the first time at the hearing on Defendant’s Motion for Final Summary Judgment, was prejudicial to the Defendant.Controlling Statutory Authority
F.S. 627.736(5)(b)5, is set forth as follows:
Effective upon this act becoming a law and before November 1, 2001 (emphasis supplied), allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.
Pleading History
On February 2, 2002 the Plaintiff filed their original Complaint. The Plaintiff’s Complaint limited the issue/cause of action to whether the effective date of F.S. 627.736(5)(b)5 was June 19, 2001 or October 1, 2001 and thus, the Defendant was only put on notice as to the above issue and cause of action.
On March 5, 2003, the Third District Court of Appeal, in the case of State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company v. West Gables Open MRI Services, Inc. and Presgar Medical Imaging, Inc., 846 So.2d 538 (Fla. 3d DCA 2003) succinctly stated that “the effective date of F.S. 627.736(5)(b)5, as established by section 6 of the Act1, is the effective date of the Act, is June 19, 2001 [emphasis added].”The Third District Court of Appeal further stated that F.S. 627.736(5)(b)5 is unambiguous and that F.S. 627.736(5)(b)5 stands alone from the other fee schedules set forth in F.S. 627.736(5)(b) and thus, there is not disharmony.
On February 28, 2003, the Plaintiff filed their Motion for Leave to Amend Complaint and a proposed Amended Complaint. The Plaintiff’s proposed Amended Complaint contained issues and set forth allegations concerning whether F.S. 627.736(5)(b) was unconstitutional; whether, under F.S. 627.736(5)(b)5, the “participating amount or limiting charge” were the “allowable amounts” that could be billed; and addressed matters concerning the “consumer price indices” issues.
At no point in time prior to the hearing on the Defendant’s Motion for Final Summary Judgment did the Plaintiff set a hearing or make any attempt to set his Motion for Leave to Amend Complaint for hearing. Thus, at the time of the subject hearing, the only issue the Defendant was on notice of was the effective date of F.S. 627.736(5)(b)5.
Legal Analysis
Florida Courts have found that essential allegations will not be imported into a declaration by inference and the allegations of a complaint are construed most strongly against the pleader. Edwards v. Maule Industries, 147 So.2d 5 (Fla. 3d DCA 1962); Matthews v. Matthews, 122 So.2d 571 (Fla. 2d DCA 1960). Moreover, a trial court may not construe a pleading to insert an essential element by inference. Magner v. Merrill Lynch Realty/MCK, Inc., 585 So.2d 1040 (Fla. 4th DCA 1991).
Where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim. E.I. Du Pont De Nemours and Company v. Desarrollo Industrial Bioacuatico, S.A., 28 Fla. L. Weekly D2171 (Fla. 4th DCA 2003). Litigants, at the outset of a suit, must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Id. Moreover, just because a defendant may have been put on notice of similar claims in the past does not mean that a defendant is put on notice that it must defend against those same issues in each case. Id. Failure to properly plead an issue or cause of action and failure to put a defendant on notice of an issue, claim or cause of action, prejudices that defendant’s ability to defend that issue, claim or cause of action.
In the instant case, this Court finds that the Plaintiff failed to set any Motions to Amend and failed to get leave of court to amend their Complaint. Allowing the Plaintiff to amend their Complaint, ore tenus on today’s late date, at the hearing on PROGRESSIVE’s Motion for Final Summary Judgment, would severely prejudice PROGRESSIVE. As such, the Plaintiff’s ore tenus Motion for Leave is denied as untimely and would result in prejudice to PROGRESSIVE.
Additionally, the Plaintiff failed to put the defendant on notice of any other issues, other than the effective date of F.S. 627.736(5)(b)5; that the defendant filed their Motion for Final Summary Judgment in a timely manner and that no other issues, other than those raised by the defendant in their Motion for Final Summary Judgment, were framed by the pleadings at the time of the subject hearing; and given that this Court is in the Third District, this Court is bound by the holding in State Farm Mutual Automobile Insurance Company and Allstate Indemnity Company v. West Gables Open MRI Services, Inc. and Presgar Medical Imaging, Inc. and finds, as a matter of law, that the effective date of F.S. 627.736(5)(b)5, is June 19, 2001 and finds in favor of PROGRESSIVE.
Accordingly, Defendant’s Motion for Final Summary Judgment is granted and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day and Plaintiff shall take nothing by this action. The Court reserves jurisdiction to award attorney fees and costs. Plaintiff’s Motion for Summary Judgment is denied.
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1SB 1092 enacted June 19, 2001.
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