11 Fla. L. Weekly Supp. 216a
Insurance — Personal injury protection — Preferred provider rates — Medical provider’s action against insurer for unpaid balance of bills paid by insurer at reduced preferred provider rates — No abuse of discretion in granting insurer’s motion for directed verdict where medical provider who belonged to preferred provider organization sued insurer as assignee of insured’s PIP benefits but offered no evidence that insured was obligated to provider for any of the unpaid portion of claim and, therefore, provider could not collect that amount from insurer
GORDON LEWIS RODETSKY, Appellant, v. NATIONWIDE GENERAL INSURANCE COMPANY, Appellee. Circuit Court (Appellate), 20th Judicial Circuit in and for Charlotte County. Case No. 02-02AP. L.C. Case No. 01-407SP. Opinion issued October 28, 2003. Appeal from the County Court for Charlotte County; W. Wayne Woodard, Judge. Counsel: Michele Muir, Kane & Kane, Boca Raton, for Appellant. Charles Tyler Cone, Fowler, White, Boggs, & Banker, P.A., Tampa, for Appellee.
(PER CURIAM.) Appellant, Gordon Lewis Rodetsky, challenges the final judgment entered in favor of Appellee, Nationwide General Insurance Company. Appellant raises eight issues in this appeal. While we affirm on all issues raised, we write only to discuss issues four and six, in which Appellant argues that the trial court erred in granting Nationwide’s motion for directed verdict.
Rodetsky, as assignee of insurance benefits, sued Nationwide for damages for wrongful reduction of personal injury protection (PIP) benefits. The pleadings alleged that Jerry Schultz had an insurance policy with Nationwide, which provided PIP benefits and extended medical coverage. Schultz did not purchase a “preferred provider” policy. Schultz sustained injuries in an automobile accident and received chiropractic care from Rodetsky for the injuries. Schultz then assigned his PIP benefits to Rodetsky. Schultz furnished Nationwide with an application for PIP benefits with medical authorizations, and Rodetsky submitted claim forms to Nationwide. Rodetsky requested that Nationwide pay 80% of the reasonable and necessary medical expenses pursuant to section 627.736(1)(a), Florida Statutes (1999). However, Nationwide reduced the medical expenses by applying lower preferred provider rates on the ground that Nationwide and Rodetsky both belonged to CCN Preferred Provider Organization (PPO).
Section 627.736 provides, in pertinent part, as follows:
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, . . . , subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained . . . as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs.
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(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the products, services, and accommodations rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like, products, services, or accommodations in cases involving no insurance, provided that charges for cephalic thermograms and peripheral thermograms shall not exceed the maximum reimbursement allowance for such procedures as set forth in the applicable fee schedule established pursuant to s. 440.13.
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(10) An insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as “preferred providers,” which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463. The insurer may provide an option to an insured to use a preferred provider at the time of purchase of the policy for personal injury protection benefits, if the requirements of this subsection are met. If the insured elects to use a provider who is not a preferred provider, whether the insured purchased a preferred provider policy or a nonpreferred provider policy, the medical benefits provided by the insurer shall be as required by this section. If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section and may waive or lower the amount of any deductible that applies to such medical benefits. If the insurer offers a preferred provider policy to a policyholder or applicant, it must also offer a nonpreferred provider policy. The insurer shall provide each policyholder with a current roster of preferred providers in the county in which the insurer resides at the time of purchase of such policy, and shall make such list available for public inspection during regular business hours at the principal office of the insurer within the state.
At the bench trial, the trial court heard testimony from Rodetsky’s office manager, from Rodetsky, and from Nationwide’s litigation specialist. At the conclusion of Rodetsky’s case, Nationwide moved for directed verdict. Nationwide argued that Rodetsky admitted that he was a member of CCN PPO, that Rodetsky failed to establish that he was not a member of CCN PPO, and that Rodetsky’s office manager testified that Nationwide paid Rodetsky at CCN PPO rates. The trial court granted Nationwide’s motion for directed verdict.
Under issue four of the initial brief, Rodetsky argues that the trial court abused its discretion in granting Nationwide’s motion for directed verdict because he established a prima facie case, precluding entry of the directed verdict. Rodetsky states that: (1) the assignment of benefits, the claims forms, and his account ledger were entered into evidence; (2) his office manager testified that bills had been submitted to Nationwide in a timely manner, that the amount billed was $7,288, that the amount paid was $5,674.53, and that the balance due was $1,613.47; (3) Nationwide stipulated that he is a licensed chiropractor who treated Schultz; (4) he testified that Schultz’s treatment was medically necessary and related to the accident, and that the charges were reasonable; (5) his testimony establishes that he complied with the requirements of sections 627.736(1)(a) and (5)(a); and (6) Nationwide’s litigation specialist testified that Schultz was insured by Nationwide, that Schultz’s policy included $10,000 of PIP benefits with no deductible and $2,000 of medical payments, and that PPO reductions were applied to the bills.
Under issue six, Rodetsky essentially argues that the trial court abused its discretion in granting Nationwide’s motion for directed verdict because Nationwide failed to establish a basis for the reductions to the bills. Specifically, Rodetsky claims that during his cross examination by Nationwide, Nationwide entered into evidence, over objection, a non-authenticated ripped portion of an alleged contract between he and CCN PPO, that Nationwide did not elicit testimony from him regarding an agreement with CCN PPO, and that no contract between CCN PPO and Nationwide was entered into evidence.
With respect to both of the issues, the Court finds that the trial court did not abuse its discretion in granting Nationwide’s motion for directed verdict. Rodetsky, who testified that he belonged to CCN PPO, sued Nationwide as assignee of Schultz’s PIP benefits. However, Rodetsky offered no evidence that Schultz was obligated to him for any of the $1,613.47. In fact, Rodetsky’s office manager testified that Rodetsky had not sought to hold Schultz liable for any of that amount. Since Rodetsky failed to establish that Schultz owed him $1,613.47, Rodetsky could not collect that amount from Nationwide. Consequently, the trial court did not abuse its discretion in granting Nationwide’s motion for directed verdict.
We affirm as to all other issues raised.
AFFIRMED. (STARNES and ROSMAN, JJ., concur.)
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(ELLIS, J., concurs in part and dissents in part with an opinion.) I concur in part and respectfully dissent in part. The trial court should be affirmed on all issues, except issue six. I would reverse the entry of the directed verdict and remand for a new trial.
Rodetsky is entitled to payment under section 627.736(1)(a). Schultz presented himself to Rodetsky under a PIP policy governed by that statutory provision. Section 627.736(1)(a) does not discuss any authorization for Nationwide to pay the reduced PPO amount for Rodetsky’s services simply because he and Nationwide evidently belonged to CCN PPO. Although Nationwide wants Rodetsky to be categorized as a preferred provider under section 627.736(10) in order to pay him at the reduced PPO amount, Schultz did not present himself as a PPO customer.
I would require Nationwide to present legal authority as to why Rodetsky’s claim that he is entitled to payment under section 627.736(1)(a) lacks merit. Similarly, I would require Nationwide to present legal authority to support Nationwide’s argument that Rodetsky’s bill should be reduced under section 627.736(10).
Rodetsky should not be required to place the testimony of Schultz before the court. Nationwide did not object to the services provided by Rodetsky or argue that the services provided by him were not medically necessary.
I believe that Nationwide Mutual Fire Insurance Company v. Central Florida Physiatrists, P.A., 851 So. 2d 762 (Fla. 5th DCA 2003), supports my contention that Rodetsky is entitled to payment under section 627.736(1)(a). The Fifth District determined that an insurance company was required to pay PIP benefits at the statutory rate set forth in section 627.736(1)(a), not at the reduced PPO rate, even though the insurance company and the health-care provider were members of same PPO. Id. The district court reasoned that while section 627.736(10) permits insurance companies to contract with health-care providers for PPO benefits, that statute provides no specific authority for insurance companies to contract with PPO networks. Id.
For these reasons, I believe that the trial court abused its discretion in granting Nationwide’s motion for directed verdict.
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