11 Fla. L. Weekly Supp. 788b
Insurance — Personal injury protection — PIP insurer not liable to assignee medical provider which did not have massage establishment license, as required by Chapter 480, or occupational license , as required by county code, although assignee employed license massage therapist and licensed chiropractor, both of whom provided claimant with treatment — Legislature’s intent in protecting public is best served by requiring facilities that render medical treatment to be licensed, in addition to the requirement that individual practitioners be licensed — With respect to occupational license, county code requires payment of occupational license tax and makes it a misdemeanor to operate facility without occupational license — Because treatment was unlawfully rendered, trial court erred in denying insurer’s motions for summary judgment and directed verdict
STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, Appellant, v. WEST DIXIE REHABILITATION & MEDICAL CENTER, a/a/o LOUISA PONTHIEUX, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-394 AP. L.T. Case No. 01-2508 CC 05. July 20, 2004. On appeal from the County Court for Miami-Dade County, Roger A. Silver, Judge. Counsel: Nancy W. Gregoire, Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., and Jonathan S. Brooks, Green, Murphy, Wilke & Murphy, P.A., for Appellant. Randy M. Weber and Philip D. Parrish, for Appellee.
(Before MARGARITA ESQUIROZ, CELESTE H. MUIR, and BERNARD S. SHAPIRO, JJ.)
(ESQUIROZ, J.) This matter is on appeal from a denial by the trial court of Appellant’s motions for summary judgment and directed verdict. Both motions assert that Appellant was not liable for payment of personal injury protection (PIP) medical benefits for claimant, Louisa Ponthieux, because hertreatment was not lawfully rendered pursuant to § 627.736(5)(a), Fla. Stat. (2001).
On October 20, 2000, Louisa Ponthieux was injured in an automobile accident. She was one of four people in the car. She and all the other vehicle occupants went to West Dixie for treatment and assigned it their rights to recover PIP benefits from State Farm, the PIP insurer whose policy covered them. When West Dixie provided treatment, it did not have a massage establishment license or an occupational license.
On November 21, 2000, State Farm received the first set of bills from West Dixie in theamount of $1,275 for treatment provided to Ponthieux. State Farm paid this bill, but notified Ponthieux that it wanted to schedule an examination under oath (EUO) for her and the other vehicle occupants.
On December 19, 2000, State Farm received another set of bills from West Dixie for Ponthieux in the amount of $3,374. At this point, no EUOs had been taken. State Farm notified West Dixie that it was withholding payment of the second set of bills pending further investigation because the accident report did not indicate Ponthieux was in the car whenthe accident occurred. State Farm then requested West Dixie to provide all documents ithad on the subject accident. It also notified Ponthieux and the other vehicle occupants that their EUOs were scheduled for January 11, 2001. This was within 30 days after State Farm received the second set of bills.
On January 5, 2001, Ponthieux’s counsel requested that the EUOs be postponed due to a scheduling conflict. State Farm agreed and rescheduled all four EUOs for February 13, 2001.
On February 13, 2001, all four vehicle occupants showed up for their EUOs as scheduled. However, by agreement of counsel, only two submitted to EUOs due to time constraints, and the other two, including Ponthieux, submitted to their EUOs the following day. West Dixie filed suit on the afternoon of February 13, 2001 for all the vehicle occupants on the grounds that State Farm failed to pay the second set of bills within 30 days of receipt of same as provided in § 627.736(4)(b), Fla. Stat. (2001).
Before and during trial, State Farm filed motions for summary judgment and directed verdict, claiming it was not liable because a condition precedent had not been fulfilled (Ponthieux failed to attend an EUO prior to filing suit), that Ponthieux’s treatment was unlawful, and that there was insufficientevidence at trial to support the jury verdict. The trial court denied these motions, and a jury found in favor of West Dixie. This appeal followed.
After considering this matter, we agree with State Farm’s argument that the medical treatments were unlawfully rendered. Section 627.736(5)(a), Fla. Stat. (2001) provides that PIP benefits are payable only for lawfully rendered medical treatment. See also Ortega v. United Automobile Ins. Co., 847 So.2d 994 (Fla. 3d DCA 2003).Because West Dixie lacked a massage establishment license and an occupational license, we reverse the trial court’s denial of State Farm’s motions for summary judgment and directed verdict.
Both parties agree that West Dixie lacked both a massage establishment license and an occupational license. Both parties also agree that West Dixie employed a licensed massage therapist and a licensed chiropractor, both of whom provided Ponthieux with treatment. Thus, the issue is whether a PIP insurer can be liable to an assignee medical provider which does not have either an occupational or a medical license, even though it employs licensed medical professionals who provided treatment to the insured.
Because the case law is silent on this narrow issue, we must logically analyze this issue to resolve the matter. (While Ortega v. United Automobile Ins. Co., 847 So. 2d at 996 appears to implicitly interpret § 627.736(5)(a) to require entities providing medical treatment to be licensed, we directly address this issue in this case.) In reviewing the issues, we find that Ponthieux’s treatment was unlawful for purposes of § 627.736(5)(a), Fla. Stat. (2001) because West Dixie did not have a massage establishment license. Despite the fact that a licensed massage therapist and a licensed chiropractor treated Ponthieux, the facility itself was not licensed. In order to obtain such a license, the facility had to meet certain standards and guidelines detailed in Chapter 480, Florida Statutes. §§ 480.043(2), (5), Fla. Stat. (2001). These requirements include meeting standards set by the Board of Massage Therapy including having “rules governing the operation of [the] establishments and their facilities, personnel, safety and sanitary requirements, financial responsibility, insurance coverage, and the license application and granting process.” § 480.043(2), Fla. Stat. (2001). The policy behind these standards is protection of the public. § 480.032, Fla. Stat. (2001).
West Dixie argues that the public policy aims have been served in this case because Ponthieux was treated by a licensed massage therapist and a licensed chiropractor. It argues that her safety was protected by having licensed professionals treat her and that its lack of a license is immaterial as the aims of the public policy have been met. We respectfully disagree. Because West Dixie was not licensed, it did not have its facility reviewed in order to determine if the facility met sanitary conditions suitable for a medical facility when it provided treatment to Ponthieux. There was also no determination as to what kind of insurance coverage West Dixie had, in the event it was sued for medical malpractice. Even from a cursory review, these examples illustrate two glaring instances where West Dixie’s lack of a license may potentially harm the public. We therefore hold that Appellee is required to have a massage establishment license as required by Chapter 480 in order for its treatment to be lawfully rendered pursuant to § 627.736(5)(a), Fla. Stat. (2001). We find the legislature’s intent in protecting the public is best served by requiring facilities that render medical treatment to be licensed, in addition to the requirement that individual practitioners must also be licensed. E.g., State Farm Mutual Automobile Ins. Co. v. Universal Medical Center of South Florida, Inc, 2003 WL 22715675 (Fla. 3d DCA November 19, 2003) [29 Fla. L. Weekly D652e].
State Farm also argues that West Dixie lacked an occupational license rendering the treatment unlawful. While West Dixie failed to pay its occupational license tax, this failure does not trigger the same policy implications as failing to have a massage establishment license because the Miami-Dade County Code’s requirement is a means to generate revenue — not a measure to protect the public. However, §8A-171, Article IX, Miami-Dade County Code does require payment of the occupational license tax, and §8A-172 makes it a misdemeanor to operate such a facility without an occupational license. As such, we find that the failure to pay the occupational tax also renders West Dixie’s treatment unlawful.
Because we find that treatment was unlawfully rendered, we decline to address the merits of the other issues raised on appeal because they are moot. Accordingly, we reverse the trial court’s denials of summary judgment and directed verdict and remand this matter for further proceedings consistent with this opinion. (SHAPIRO, J., concurs. MUIR, J., dissents.)
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(MUIR, J.) I respectfully dissent.
The contract for insurance and Florida’s “no fault” law make State Farm liable only for lawful, reasonable, and necessary medical services. State Farm properly objected to payment of claims for services rendered by unlicensed providers. The contract for insurance, however, does not excuse State Farm from paying for services rendered by licensed providers at a new facility, thatmay not have obtained an occupational license to operate at the time the medical services were rendered.
In this case, it is undisputed that although the appellee, West Dixie Rehabilitation and Medical Center, did not have anoccupational license at thetime the services were rendered, that an occupational license was obtained a month after. (R-294, exhibit to State Farm’s Motion for Summary Judgment.) Moreover, there was no affirmative defense alleging that a license for a massage establishment would be at issue. (R-43-44) The appellee West Dixie was not placed on notice that StateFarm would assert that the type of license lacking would be a license for a massage establishment, as the pretrial motion for summary judgment covered only the type of occupational license that the appellant acquired from Dade County a month after theservices at issue were rendered.
The duty to obtain medical or occupational licenses and which type of license is required are questions of law and fact. Whether a separate license for each type of business involved in a medical center (chiropractic services, massage therapy, insurance billing, etc.) was an issue of government regulation, policy and practice, not addressed by the witnesses.
State Farm raised the occupational license issue in a motion for summary judgment prior to the trial, but injected the issue of a license for massage establishments at the time of trial. After denying a motion in limine by the appellee, the trial judge left the entire decision on licensing to the jury, which was improper, especially here where the statutes and ordinances governing licenses were not covered by testimony or the instructions to the jury.
In his closing argument, the attorney for State Farm offered:
Well, it would almost seem that chiropractors hire the massage therapists, but in this situation it’s pretty odd. The facility was owned by massage therapists and Mr. Moise who has no medical degree or credentials. So, the owners of the facility were Mr. Rouzard and an employee or independent contractor. One of the people below him was Doctor Hornfelt. A massage establishment has to be licensed. In fact, Florida statute 480.043 says… (objection, including lack of (jury) instruction on the law, overruled.)
…No massage establishment shall be allowed to operate without a license granted by the department in accordance with the rules adopted by the board. Was there any testimony of the massage license establishment? Mr. Moise said, no. Well, is it an establishment? Establishment means a site or premises or portion thereof wherein the massage therapist practices medicine. Sure seems like that’s a massage establishment. Did he have a license? He didn’t have any license. He didn’t have an occupational license which they argue is just for revenue purposes. Either way he didn’t have it. He didn’t have a separate license by any department boards saying that his facility can operate massage. Why? Why is this all important? Folks, he’s been submitting bills under Doctor Hornfelt’s name since day one, day one… (R.-1011)
Counsel’s definition of establishment quotes from the statute, except he said “practice medicine” instead of “practice massage.” Inappropriately, he raised the issue of practicing “medicine” without a license.
In the appellant’s brief, an assertion is made that:
Rather than proper licensing, West Dixie’s argument, with which the trial court agreed, was that because Dr. Hornfeld was a licensed chiropractor and Mr. Rouzard was a licensed massage therapist it was a “chiropractic care center” and needed no further licensing to make its treatment. (Page 26, Initial Brief of Appellant.)
However, the trial court judge, if he did agree with the argument, allowed argument to the jury on the licensing issue over objection of counsel for the appellee without sufficient testimony as to which type of license was necessary, and without proper instruction on the applicable law. The attorney for State Farm’s closing argument was inappropriate as to licenses for massage establishments.
My colleagues have determined as a matter of law that the appellee needed a “massage establishment” license, but there was no evidence that the appellee was an entity “established” to provide massage. That issue was not raised timely at the trial level, and cannot be assumed under the circumstances of this case.
Nevertheless, the jury’s finding that the services rendered were lawful, resolved the issues of licensing in favor of the appellee, West Dixie. The judgement on the jury’s verdict, finding the services lawful, should be affirmed.
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