12 Fla. L. Weekly Supp. 1094b
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Where insurer paid MRI provider pursuant to participating fee schedule under Medicare Part B without any consumer price index increase, insurer is liable to provider for consumer price index increase
FLORIDA MRI, INC., (Barbara Powell), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-25137 COCE (4)9. August 23, 2005. Kathleen D. Ireland, Judge. Counsel: Steven Lander, Lander and Goldman, Ft. Lauderdale. Frank Goldstein.
ORDER
THIS CAUSE having come on before this Court on: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT, and the Court having heard argument of counsel, and being otherwise advised in the Premises, and the same is hereby ordered and adjudged:
The parties have previously stipulated that the only issue remaining in this case is whether the Defendant, Progressive Express Insurance Company, was obligated to pay a consumer price index increase to the MRI performed by the Plaintiff. The Court finds that there are no issues of material facts, and as only legal issues remain summary judgment is proper.
On November 15, 2002 the Plaintiff, Florida MRI, performed an MRI on the Defendant’s insured, Barbara Powell. Florida MRI billed the Defendant, Progressive, directly for the technical portion of the MRI. Thereafter, Progressive issued a payment of $663.86 to the Plaintiff for the MRI services. That amount was paid pursuant to the participating fee schedule under Medicare Part B (2001). No consumer price index increase was made relative to that payment.
The Court reviewed the appellate case of Betty Fair vs. State Farm Mutual Automobile Insurance Company, 11 Fla. L. Weekly Supp. 863c. In that case the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Case Number: 04-00004-CAAC, in its appellate capacity, ruled that “The legislature intended that the amount of authorized payments was to be adjusted annually. To accept the appellee’s position, one would have to accept that the legislature unwittingly enacted the section because under the interpretation of the appellee, the subsection is meaningless. For the legislature to intend that payments be adjusted by a nonexistent standard would be absurd. The appellant points out accurately that the only CPI to completely subsume the state of Florida is the south regional CPI. The legislature later amended Statute 627.736(5)(b)5, to set the standard by which the authorized payments were to be adjusted.”
In light of this appellate decision and argument of counsel this Court finds that Progressive, beginning August 1, 2002, was obligated to increase the amount it pays to MRI providers, adjusting annually on August 1 to reflect the prior calendar year’s changes in the annual in accord with the Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year. Fla. Stat. 627.736(5)(b)5 (2003). As the Defendant failed to pay pursuant to the statutorily mandated schedule it is liable to the Plaintiff for damages in the amount of $27.20.
Accordingly, Summary Judgment is hereby entered in favor of the Plaintiff for damages in the amount of $27.20. Defendant’s Cross Motion for Summary Judgment is hereby denied.
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