11 Fla. L. Weekly Supp. 454b
Insurance — Personal injury protection — Coverage — Medical expenses — MRI services were reasonable, related and necessary as result of accident and injuries sustained by insured — Charges awarded based on fee schedule set forth in statute — Summary judgment granted in favor of plaintiff as to defenses of countersignature, timely notice of loss, and fraud — Defendant failed to properly plead elements of fraud and failed to provide any evidence or proffer of evidence which would support fraud defense — Plaintiff’s motion for summary judgment granted
PRESGAR MEDICAL IMAGING, d/b/a CENTRAL MAGNETIC IMAGING, (a/s/o Dexter Hepburn), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 02-20659 SP 23. January 22, 2004. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, North Miami, for Plaintiff. Keith Lambdin, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court on January 12, 2004 on the Plaintiff’s Motion for Final Summary Judgment, after hearing argument of the parties and being fully advised of the premises thereof, the Court finds as follows:
1. That the insured Dexter Hepburn was involved in an automobile accident on August 27, 2001. The Plaintiff’s complaint mistakenly sets forth the accident as occurring on May 28, 2001. Pursuant to Rule 1.190(a) upon the ore tenus motion of the Plaintiff and upon the Notice of Amendment by way of interlineation filed by the Plaintiff, the complaint is deemed to be amended to conform to the evidence.
2. On the date of said accident the Defendant insured Dexter Hepburn for PIP insurance benefits.
3. On October 31, 2001 the Plaintiff rendered MRI services, CPT code 73221, as set forth in Exhibit A of the Motion for Summary judgment and authenticated by the affidavit of the Plaintiff’s record’s custodian. That the Plaintiff received from Dexter Hepburn an assignment of benefits.
4. Upon the sworn affidavit of Dr. Wallace Williamson, the Court finds that the MRI was requested by Dr. Williamson and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Dexter Hepburn.
5. The Defendant present no countervailing expert opinion affidavit in opposition to that of Dr. Williamson. The Defendant itself set a cut-off date for insurance benefits of January 3, 2002 by way of letter wherein the Defendant asserted that services after this date would be deemed not reasonable, related or necessary. Exhibit F of the Plaintiff’s Motion for Summary Judgment.
6. That Plaintiff’s charges are subject to the fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat. That the Plaintiff is an accredited facility and is entitled to 200% of the 2001 Medical fee schedule for CPT code 73221 which amount is $1,090.14 ($545.07 x 2). Accordingly the amount due the Plaintiff is $872.11 plus interest, attorney’s fees and costs.
7. That Summary Judgment in favor of the Plaintiff is granted as to the defenses of countersignature, timely notice of loss and fraud. As to the timely notice defense the un-rebutted evidence is that the insured reported the accident the day after the accident or the next day to the insurance agency which sold the Defendant’s insurance policy to the insured. Furthermore, one of the insured’s medical provider provided the Defendant with a statutory notice of initiation of treatment on September 18, 2001 and which was received on September 26, 2001.
As to the defense of fraud the Defendant has failed to properly plead the elements of fraud and has failed to provide any evidence or proffer of evidence to the Court which supports a defense of fraud.
Based upon the foregoing it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is Granted. The Defendant’s motion for summary judgment is DENIED as it was filed on December 29, 2001 and the Defendant attempted to have the matter heard on January 12, 2004, which is less than twenty (20) from the filing of the motion as required by Rule 1.510, Rules of Civil Procedure. Notwithstanding the untimeliness of the motion, the Motion is nonetheless DENIED as this Court has found that the accident occurred during the term of coverage of August 27, 2001 to August 27, 2002 and the Court finds that the MRI fee schedule contained in Section 627.736(5)(b)(5), Fla. Stat., merely defines the reasonable amount which an MRI service provider may collect from an insurer/insured. Said provision does not require that the HCFA billing form state the fee schedule amount and does not set forth a penalty denying the MRI service provider payment of the fee schedule amount should the HCFA form contain an amount which differs from the MRI fee schedule amount.
In accordance with the above findings, IT IS HEREBY ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, PRESGAR MEDICAL IMAGING, INC. (as assignee of Dexter Hepburn) d/b/a Central Magnetic Imaging, of 1860 N.E. Miami Gardens Drive, North Miami Beach, FL 33179, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $872.11, as outstanding PIP benefits, and the amount of $135.41 (753 days) as statutory interest commencing on December 21, 2001, for a total judgment against the Defendant in the amount of $1,007.52 which amount shall bear interest at the rate of 7% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
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