13 Fla. L. Weekly Supp. 785a

Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Allowable amount — Adjustment to Florida Medical Consumer Price Index — Error to grant summary judgment in favor of insurer that failed to apply CPI adjustment to MRI payment on grounds that Florida CPI named in 2001 version of statute did not exist at time of payment where construction of statute to find legislature intended payments be adjusted by nonexistent standard would be absurd and render statute meaningless — Based on rules of statutory construction and consideration of 2003 amendment specifying that CPI for southern region of country be applied, insurer was required to adjust payment pursuant to CPI for southern region

OPEN MRI OF ORLANDO, INC., as assignee of TERESA VICK, Appellant, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-05-29. L.C. Case No. SCO-03-2749. March 31, 2006. Appeal from the County Court for Orange County, A. Plogstedt, Judge. Counsel: Andrea L. Davis, Bogin, Munns, and Munns, Orlando, for Appellant. Sean M. McDonough, Wilson, Elser, Moskowitz, and Dricker LLP, Orlando, for Appellee.

(Before WHITEHEAD, TURNER, and THORPE, JJ.)

FINAL ORDER REVERSING TRIAL COURT’S “ORDERDENYING PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT” AND GRANTING “APPELLANT’SMOTION FOR ATTORNEY’S FEES AND COSTSASSOCIATED WITH THE APPEAL”

(PER CURIAM.) Appellant Open MRI of Orlando (Open MRI) appeals the lower court’s final judgment denying Appellant’s motion for summary judgment and granting summary judgment in favor of the Appellee Federated National Insurance Company (FNIC). Open MRI timely appealed the final order. See Fla. R. App. P. 9.110(b). This Court has jurisdiction. See Fla. R. App. P. 9.030(c)(1)(A). The facts contained in the record are as follows:

This case began on March 17, 2003, when Open MRI, as assignee for Teresa Vick, brought suit against FNIC seeking $634.34 plus statutory interest for an MRI performed on November 1, 2002. The issue involved whether FNIC properly paid Open MRI for its services as set forth in the 2001 version of section 627.736(5)(b)5, Florida Statutes. Both parties subsequently filed motions for summary judgment. On March 28, 2005, a hearing was held on the parties’ summary judgment motions. Open MRI argued that FNIC failed to apply the consumer price index (CPI) to its payment for the MRI. FNIC asserted that the statute is not clear as to which CPI applies to the payment and therefore, it correctly paid Open MRI. After hearing the parties’ arguments, the trial court found that the statute placed FNIC in an impossible position of determining which CPI applied. Accordingly, the trial court denied Open MRI’s summary judgment motion and entered summary judgment in favor of FNIC.

The standard of review of a summary judgment is de novo. Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001) (citations omitted). Accordingly, this Court must determine if there is any genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. Id. citing Fla. R. Civ. P. 1.510(c). It is the moving party’s burden to show that no genuine issue of material fact exists. Id. (citation omitted). Therefore, this Court must consider the evidence in the light most favorable to the nonmoving party, and if the slightest doubt exists, summary judgment must be reversed. Id.

This appeal involves the meaning of “medical Consumer Price Index for Florida” contained in section 627.736(5)(b)5, Florida Statutes, (2001), which provides the adjustments to be calculated to determine the amount a PIP insurer is required to pay for MRI services. The pertinent part of section 627.736(5)(b)5, states that

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 for year 2001 . . . . Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001 . . . adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida . . . .

Open MRI asserts that the CPI for Florida is the CPI for the southern region of the country. In addition, it contends that the Legislature clarified its intent regarding the CPI when it made changes to section 627.736(5)(b)5, in 2003. The 2003 version provides in pertinent part that

[b]eginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year’s changes in the annual Medical Care Item of the Consumer Price Index for all Urban Consumers in the South Region as determined by the Bureau of Labor Statistics for the United States Department of Labor for the 12-month period ending June 30 of that year . . . .

§ 627.736(5)(b)5, Fla. Stat. (2003) (emphasis added).

On the other hand, FNIC maintains that while there are several consumer price indices published, none are referred to as “the medical Consumer Price Index for Florida.” FNIC asserts that as a result, insurance companies have no guidance on which price index they should use. Therefore, FNIC argues that the trial court was correct in finding that a CPI for Florida did not exist at the time of payment.

While several county court decisions support FNIC’s position, those decisions are not binding upon this Court.¹ Rather, the appellate decisions of other circuit courts in this state are more persuasive. For example, in Fair v. State Farm Mutual Auto-Mobile Insurance Company, 11 Fla. L. Weekly Supp. 863c (Fla. 7th Cir. Ct. July 15, 2004) and Premier Open MRI, LLC v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 715b (Fla. 13th Cir. Ct. April 18, 2005), both appellees argued that the CPI for Florida did not exist while the appellants maintained that the CPI for Florida was the CPI for the southern region of the country. Both circuit courts decided in favor of the appellants after examining the rules of statutory construction.

In construing a statute, “legislative intent is the polestar by which the court[s] must be guided . . . even when at odds with the strict letter of the statute.” Fair, 11 Fla. L. Weekly Supp. 863c quoting Burris v. State, 825 So. 2d 1034 (Fla. 5th DCA 2002). Words in common use are to be given their plain and ordinary meaning unless it appears otherwise. Fair, 11 Fla. L. Weekly Supp. 863c (citation omitted). “In addition to the statute’s plain language, a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” Id. quoting State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). Furthermore, “[c]onstruction of a statute which would lead to an absurd result should be avoided.” Id. (citation omitted).

Moreover, courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute. G.E.L. Corp. v. Dep’t of Environ. Protection, 875 So. 2d 1257, 1262 (Fla. 5th DCA 2004). “[C]ourts have consistently held that subsequently enacted legislation may indicate the Legislature’s intent to clarify the law rather than change it.” Id. This is particularly so “where the subsequently enacted legislation comes soon after controversies arise over the meaning of an existing statute or soon after judicial interpretations of an existing statute are rendered.” Id.

Based on the rules of statutory construction and the 2003 amendment, both circuit courts found that the Legislature intended that the amount of authorized payments was to be adjusted annually pursuant to the “Consumer Price Index for all Urban Consumers for the South” as stated in the 2003 version of section 627.736(5)(b)5, Florida Statutes. Fair, 11 Fla. L. Weekly Supp. 863; Premier, 12 Fla. L. Weekly Supp. 715. To accept otherwise would render the subsection meaningless. Fair, 11 Fla. L. Weekly Supp. 863. Furthermore, “[f]or the legislature to intend that payments be adjusted by a nonexistent standard would be absurd.” Id.

The present appeal involves the same facts and legal arguments as those presented in Fair and Premier. While neither of these decisions is binding upon this Court, as appellate decisions they are more persuasive than the county court cases cited by FNIC. As a result, FNIC was not entitled to judgment as a matter of law. Accordingly, the trial court incorrectly granted summary judgment in favor of FNIC.

Open MRI has also filed a timely motion seeking attorney’s fees and costs associated with the appeal pursuant to sections 627.736 and 627.428, Florida Statutes. Pursuant to Florida Rule of Appellate Procedure 9.400, Open MRI should be awarded its appellate attorney’s fees and the assessment of those fees should be remanded to the trial court. In addition, Open MRI is entitled to have costs taxed in its favor by filing a proper motion with the trial court within thirty days after the issuance of the mandate in this case.

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s “Order Denying Plaintiff’s Motion for Partial Summary Judgment” is REVERSED; “Appellant’s Motion for Attorney’s Fees and Costs Associated with the Appeal” is GRANTED; and this case is REMANDED for proceedings consistent with this opinion.

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¹See Regional MRI of Orlando, Inc. v. Progressive Am. Ins. Co., 11 Fla. L. Weekly Supp. 676a (Fla. Seminole Cty. Ct. April 20, 2004); Open MRI of Orlando v. Direct General Ins. Co., 12 Fla. L. Weekly Supp. 153a (Fla. Orange Cty. Ct. Nov. 12, 2004); Holz v. New Hampshire Indem. Co., Inc., 10 Fla. L. Weekly Supp. 1036c (Fla. Hillsborough Cty. Ct. Oct. 13, 2003); Florida Mobile MRI, Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 136a (Fla. Miami-Dade Cty. Ct. Dec. 10, 2003).