12 Fla. L. Weekly Supp. 715b
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Where original language of section 627.736(5)(b)(5) did not define “medical Consumer Price Index for Florida” to be used to adjust amount to be charged to PIP insurer for MRI and no index by that exact name exists, but Medical Care Item of CPI for all Urban Consumers in South Region is only CPI that fits within parameters set forth in statute, and clarifying amendment plainly evinces legislature’s intent that medical CPI for Florida means CPI for Urban Consumers in South Region, trial court erred in not considering adjustment to MRI payment based on that CPI — Demand letter — Medical provider was not required to furnish demand letter as condition precedent to filing suit involving claim that was reduced
PREMIER OPEN MRI, LLC, (a/a/o Thomas Canaday), Appellant, v. PROGRESSIVE EXPRESS INSURANCE CO., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County, Civil Division. Case No. 04-5919, Division X. L.C. Case No. 03-18740-CC. April 18, 2005. Review of a final order of the County Ct., Hillsborough County. Counsel: William K. Saron, St. Petersburg; David Michael Caldevilla, De La Parte & Gilbert P.A., Tampa; and J. Daniel Clark, Clark & Martino, Tampa, for Appellant. Valeria Hendricks, Tampa, for Appellee.
(SAM D. PENDINO, J.) Appellant (Plaintiff below) PREMIER OPEN MRI appeals a final summary judgment in favor of Appellee (Defendant below) PROGRESSIVE EXPRESS INSURANCE COMPANY [11 Fla. L. Weekly Supp. 840a]. The issue involves payment amount for magnetic resonance imaging (MRI) services, which amount is set forth by statute. Section 627.736(5)(b)(5), Florida Statutes (2001). The statute states:
“. . .allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B. . .adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. . . .”
Appellant disputes the amount it was paid based upon the statutory factors to be considered in determining the proper amount, specifically the adjustment in accordance with the consumer price index (CPI) for Florida, and asserts that the trial court erred when it did not consider an adjustment based upon the CPI for the region which includes Florida. The trial court concluded that the CPI referred to in the statute does not exist. Appellee contends that the trial court was correct in its ruling. For reasons set forth below, we agree with Appellant and reverse the ruling of the trial court. The facts are as follows.
Appellant filed a complaint July 29, 2003, alleging that Appellee Progressive failed to comply with section 627.736(5)(b)(5) Fla. Stat. (2001) in its payment of no-fault benefits for magnetic resonance imaging (“MRI”) services provided to Progressive’s insured. According to the complaint, Appellant Provider was owed a difference of $128.20 between benefits actually paid and benefits due under the statute. In its amended answer and affirmative defenses, Appellee asserted that Appellant exceeded the usual and customary changes permitted by Florida law because Florida law did not validly provide for an adjustment over and above the Medicare Part B schedule. At the hearing on summary judgment, Progressive argued that because there is no Florida Medical Consumer Price Index, there is no percentage increase specified in section 627.736(5); therefore, Progressive paid out benefits according to the Medicare schedule without the statutory adjustment. Additionally, Appellee argued that there are several Consumer Price Indices that apply to Florida, and because of this, application of any of the indices would violate due process because there is no notice of which applies in this circumstance. Finally, Appellee contends that Appellant failed to send Progressive a seven-day demand letter prior to filing suit, as required by section 627.736(11), Florida Statutes (2001).
We first address the nebulous Florida CPI. In support of its contention that Appellee wrongfully reduced payment in violation of the statute, Appellant provided the affidavit of Hartley Mellish, an expert in the fields of economics and price indices, in which he opined that:
the term “medical Consumer Price Index for Florida,” as used in Section 627.736(5)(b)5, Florida Statutes (2001), can only refer to 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 because, among other things, it is the only generally accepted consumer price index for medical services most specific to the entire State of Florida.
Only one CPI fully complies with the statutory parameters.
We are required to interpret a statute to give effect to its legislative intent. City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578, 579 (Fla. 1984). Given that only one generally accepted index fits within the parameters set forth in the statute, we agree that the expert’s conclusion is the only reasonable conclusion in this case. Additionally, courts may use a clarifying amendment to a statutory provision to shed light on the interpretation of the original statute. Lowry v. Parole and Probation Com’n, 473 So. 2d 1248 (Fla. 1985). The revision clearly indicates the legislature’s intent, and the timing demonstrates that it was done so as to avoid further controversies after they arose in the courts. Thus, while the original statutory language did not define the “medical Consumer Price Index for Florida,” and no index by that exact nomenclature exists, the clarifying amendment to section 627.736(5)(b)(5) plainly evinces the Legislature’s intent: the “medical Consumer Price Index for Florida” means the Medical Consumer Price Index applicable to the State of Florida, which is in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region. The staff analysis for the amendment states:
The bill clarifies that the allowable amounts for medically necessary nerve conduction tests, under specified conditions, will be under the ‘participating physician fee schedule’ of the Medicare Part B fee schedule and adjusted annually on August 1 to reflect the prior calendar year changes in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics. The CPI provision also pertains to MRI services.
Senate Staff Analysis and Economic Impact Statement of CS/SB 32-A (2003). We cannot fathom that the legislature must assign a proper name to every detail of statute for its intent to be understood or its dictates to be followed. This is particularly true given the fact that names of indices may change over time. Thus, we conclude that the trial court erred in failing to use the evidence before it to give effect to the statute as adopted by the legislature.
We are likewise unpersuaded by the insurer’s argument that the alleged lack of precision in the statute did not provide it with adequate notice as to the index it should use in determining the appropriate amount to pay for MRI services. There are judicial proceedings available to assist parties who are in doubt as to the meaning of a statute. As Appellee is well aware, when a statute is difficult to understand and its meaning is in doubt, it can eliminate the risk associated with potentially violating that statute by filing a declaratory judgment action pursuant to Chapter 86, Florida Statutes. Instead of pursuing declaratory relief, Appellee decided to accept that risk by paying no consumer price index adjustment whatsoever.
Appellee also defends the judgment below by asserting that Appellant failed to conform to condition precedent to filing suit by not sending a demand letter prior to filing suit, in violation of section 627.7360(1), Florida Statutes (2001). In so doing, Appellee disclosed that, although the issue was raised in its motion for summary judgment below, the issue was not argued in the hearing, nor was it considered by the judge. This does not constrain our consideration of the issue. An appellee need not raise and preserve alternative grounds for the lower court’s judgment in order to assert them in defense when the appellant attacks the judgment on appeal. Malu v. Security Nat. Ins. Co. __ So.2d __, 2005 WL 549933, 30 Fla. L. Weekly S145 (Fla. Mar. 10, 2005), citing Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). However, the relevant version of the statute does not provide this court with a basis to uphold the trial court’s judgment. It states, in pertinent part:
(11) DEMAND LETTER. —
(a) As a condition precedent to filing any action for an overdue claim for benefits under paragraph (4)(b), the insurer must be provided with written notice of an intent to initiate litigation; provided, however, that. . .such notice is not reduired for an overdue claim that the insurer has denied or reduced. . . . (Emphasis supplied.)
Because the instant case involves a claim that was reduced, Appellant was not required to furnish a demand letter to the insurer.
We are mindful of the fact that Appellant may not have used the index it champions in this appeal when it filed its original claim against the insurance company. Although we do not condone Appellant’s action in this regard, it does not serve to alter our decision as to the law of the case. The amount due, if any, is a matter for the trial court.
It is therefore ORDERED that the decision of the trial court is REVERSED and the cause REMANDED for proceedings consistent with this opinion. It is further ORDERED that Appellant’s motion for attorney’s fees is GRANTED provided Appellant prevails in the trial court on remand. Accordingly, Appellee’s motion for attorney’s fees is DENIED. (Little and Holder, JJ., concur.)
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