11 Fla. L. Weekly Supp. 449b
Insurance — Personal injury protection — Coverage — Reduction — Preferred provider rates — Where insurer does not have PPO agreement with provider/assignee or insured, insurer’s reduction of medical bills on basis of provider’s PPO agreement with Beech Street Corporation not applicable to PIP claims was unlawful — Summary judgment granted in favor of provider
TULLER CHIROPRACTIC CENTER, INC. D/B/A TULLER CHIROPRACTIC CLINIC, As Assignee of JESSICA RATLIFF, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 8th Judicial Circuit in and for Alachua County. Case No. 2002-SC-3157. May 5, 2003. Phyllis D. Kotey, Judge. Counsel: Steven G. Rogers, The Law Office of Steven G. Rogers, Ocala, for Plaintiff. Ed Merrigan, Jr., Jacksonville, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION
THIS CAUSE, having come before the Court to be heard on the Plaintiff’s Motion for Summary Disposition pursuant to Florida Small Claims Rule 7.135, and the Court having receive argument from Counsel, reviewed the Motion, Memorandum of Law, and record evidence as contained in the Court file, and having reviewed the legal authority supplied to the Court by Counsel for the respective parties, the Court does hereby find as follows:
1. The Defendant’s insured, Jessica Ratliff (the “Insured” herein), was injured in an automobile accident on July 29, 2000. The Defendant issued an automobile insurance policy which provides personal injury protection (PIP) coverage to the Insured for the accident which occurred on July 29, 2000. The insured sought medical treatment from the Plaintiff and executed a valid assignment of benefits in favor of the Plaintiff.
2. The Plaintiff rendered medical treatment to the Insured from August 7, 2000, through December 8, 2000, and submitted medical bills in the amount of $1,140 to the Defendant for payment. The Defendant tendered partial payment to the Plaintiff in the amount of $835.20, with the total amount at issue being $304.80.
3. As the basis for its tendering payment in the reduced amount, the Defendant contends that it is entitled to utilize a contractual agreement between the Plaintiff and Beech Street Corporation, for the purpose of determining reasonable and necessary charges pursuant to Florida Statute §627.736(1) (2002).
4. The Court finds that the applicable agreement between the Plaintiff and Beech Street Corporation pertains only to the payment of Health Insurance and Worker’s Compensation claims, and further finds that this agreement does not reference or pertain to either the Defendant or personal injury protection (PIP) insurance claims.
5. The Court further finds that the Defendant’s insurance policy, which provides personal injury protection (PIP) insurance benefits to the Insured, specifically defines a “Preferred Provider” as being a “health care provider who has entered into a Provider Agreement with [the Defendant] to provide health care services to insured persons who have sustained bodily injury.” The Defendant has conceded that it did not have a “Provider Agreement” with the Plaintiff in this case.
6. The Defendant, by its own concession, has failed to comply with the provisions of Florida Statute §627.736(10) (2002) and has unlawfully attempted to avail itself of preferred provider rates contained in a contract between the Plaintiff and Beech Street Corporation.
7. Florida Statute §627.736(10) (2002), states as follows:
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 insured 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.
8. The plain language of Florida Statute §627.736(10) is clear and unambiguous, and requires payment of benefits in accordance with Florida Statute §627.736(1)(a), unless an insured elects to use a “preferred provider” as defined by Florida Statute §627.736(10).
9. The Court further adopts the reasoning of the numerous related County Court opinions regarding this issue including, but not limited to, Charles Tucker, D.C., as assignee of Benjamin P. Tucker vs. Nationwide Mutual Insurance Company, 9 Fla. L. Weekly Supp. 772a (Volusia County Case No.: 2001-35482-COCI, Division 82, September 27, 2002, finding that “Section 627.736(10)a provides the exclusive means by which an insurer can contract to pay PPO rates on Florida PIP claims); Gregory J. Harbers, D.C., d/b/a Debary Chiropractic Center, a/a/o Shirley Brucker v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp., 771a (Volusia County Court Case No.: 2001-11131-CODL, September 4, 2002); Lester N. Levine, D.C., d/b/a Deltona Advanced Wellness Medical Center, a/s/o Jessica Evans vs. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 773a (Volusia County Court Case No.: 2001-11458-CODL, September 4, 2002); S.D. Larusso, D.C., P.A., and Salvatore D. Larusso, D.C., vs. Nationwide Property and Casualty Insurance, 9 Fla. L. Weekly Supp. 63f (October 22, 2001); Kirkman Chiropractic P.A., as assignee of Jennifer T. Boyette v. Nationwide Assurance Company, 9 Fla. L. Weekly Supp. 775a (Orange County Court Case No.: SCO-01-11900, August 26, 2002); Jeff Davis, D.C., P.A., vs. Nationwide Mutual Fire Insurance Company, 8 Fla. L. Weekly Supp. 846b (Hillsborough County Court Case No.: 2000-17951-SC, October 23, 2001); Frank P. Lanzisera, D.C., d/b/a The Chiropractic Centre, P.A., as assignee of Theresa Anderson vs. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 63c (Manatee County Court Case No.: 2001 SC 1594, October 12, 2001); Fishman and Stashak, M.D.,’s P.A., d/b/a Gold Coast Orthopedics also d/b/a Gold Coast Orthopedics and Rehabilitation v. Progressive Bayside Insurance Company, 9 Fla. L. Weekly Supp. 64b (Broward County Court Case No.: 01-11619-COCE 50, October 23, 2001); Jeffrey Shebovsky d/b/a South Orange Chiropractic Center (Glenn Jeffers) v. Peachtree Casualty Insurance Company, 8 Fla. L. Weekly Supp., 246 (Orange County Court Case No.: CCO 99-9723, December 20, 2000); David W. Ice v. Progressive Bayside Insurance Company, 8 Fla. L. Weekly Supp. 262 (Broward County Court Case No.: 98-12491 COCE 53, December 12, 2000); Dr. William B. Waters v. Nationwide Mutual Insurance Company, 9 Fla. L Weekly Supp. 867c (Bay County Court Case No.: 01-CC-1087, December 28, 2001).
THEREFORE, it is therefore ORDERED and ADJUDGED as follows:
1. The Plaintiff’s Motion for Summary Disposition is GRANTED.
2. The Defendant, Progressive Express Insurance Company, shall pay the Plaintiff, Tuller Chiropractic Center, Inc., d/b/a Tuller Chiropractic Clinic, the sum of $304.80, plus accrued interest.
3. The Court reserves jurisdiction to tax attorney’s fees and costs, pursuant to Florida Statutes §§ 627.428, 627.736(8) (2002).
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