13 Fla. L. Weekly Supp. 824b
Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — Affirmative defense of failure to comply with provision of Health Care Act concerning medical director is stricken where during all relevant times medical provider held unencumbered license pursuant to Act, and insurer cannot state cause of action for perceived violation of Act absent independent determination of violation by Agency for Health Care Administration
ALL FAMILY CLINIC OF DAYTONA BEACH, INC. D/B/A FLORIDA MEDICAL ASSOCIATES AS ASSIGNEE OF SAMUEL BAKER, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005-31196 COCI. May 17, 2006. H. Pope Hamrick, Jr., Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Robert Kingsford, Maitland.
ORDER ON PLAINTIFF’S MOTION TO STRIKE COUNTERCLAIM AND MOTION TO DISMISSAFFIRMATIVE DEFENSES REGARDING COMPLIANCE WITH §400.9935
THIS CAUSE having come before the Court for consideration, and the Court having heard arguments of counsel and being otherwise fully advised, it is hereby
CONSIDERED, ORDERED AND ADJUDGED:
1. Plaintiff/Counter Defendant, ALL FAMILY CLINIC OF DAYTONA BEACH, INC. D/B/A FLORIDA MEDICAL ASSOCIATES, Motion to Strike Affirmative Defenses and Counterclaim is hereby GRANTED.
2. Defendant/Counter Plaintiff, PROGRESSIVE AMERICAN INSURANCE COMPANY, has raised as its eighth affirmative defense, inter alia:
The medical director of All Family clinic has testified that he was not aware that he was the medical director of All Family. Thus, he has failed to comply with Florida Statute §400.9935 (medical director statute). Therefore, all bills submitted were unlawful.
3. Defendant/Counter Plaintiff, PROGRESSIVE AMERICAN INSURANCE COMPANY, as a basis for its Counterclaim Count IX, has raised the allegation that ALL FAMILY CLINIC OF DAYTONA BEACH, INC. has not complied with the provisions of the Health Care Clinic Act, specifically §400.9935.
4. It is uncontested that during all relevant times ALL FAMILY CLINIC OF DAYTONA BEACH, INC. d/b/a FLORIDA MEDICAL ASSOCIATES has held an unencumbered license pursuant to Chapter 400 of the Health Care Clinic Act.
5. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, cannot state a cause of action against All Family Clinic of Daytona Beach, Inc. for any perceived violation of the Health Care Clinic Act absent an independent determination by the Agency for Health Care Administration.
6. The Health Care Clinic Act does not provide the insurance carrier with a private right of enforcement.
7. Plaintiff/Counter Defendant’s Motion to Strike Defendant’s Eighth Affirmative Defense and Motion to Dismiss Count IX of the Counterclaim is GRANTED with prejudice.
8. The Plaintiff’s Motion to Dismiss the remaining counts of the Defendant’s Counterclaim are not ruled upon by the Court at this time and are not affected by this Order.
