13 Fla. L. Weekly Supp. 242a
Insurance — Personal injury protection — Since time trial court issued final summary judgment holding that MRI provider could recover for underpayment of PIP benefits, appellate court has issued decision determining that benefits payable for MRIs are to be based on Medicare Part B fee schedule rather than limiting charge schedule — Remand to trial court to follow now-controlling appellate decision
STATE FARM MUT. INS. CO., Appellant, v. RADIOLOGY CONSULTANTS OF W. PALM BEACH et al., Appellees. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 502004AP000026XXXXMB. December 22, 2005. Appeal from the County Court in and for Palm Beach County, Susan Lubitz, Judge. Counsel: Frances F. Guasch, Miami, for Appellant. Robert Cooney, Westhampton Beach, New York, for Appellee.
(PER CURIAM.) Appellant, State Farm Mutual Insurance Company (“State Farm”), appeals the final summary judgment entered in the trial court, contending the trial court erred when it held that Magnetic Resonance Imaging (“MRI”) providers could recover for underpayment of personal injury protection (“PIP”) benefits provided to State Farm insureds.
When the trial court issued its final summary judgment, neither the trial court nor the parties had the benefit of the Third District Court of Appeal’s (“DCA”) decision in Millennium Diagnostic Imaging Ctr. v. Security Nat’l Co., 882 So. 2d 1027 (Fla. 3d DCA 2004) where the Third DCA held that amount of PIP benefits payable to MRI providers was to be based on Medicare Part B Fee Schedule for participating physicians, not the limiting charge schedule. Appellate courts apply the law as it exists at the time of the appeal even if it is different from the prevailing law at the time of the trial court’s decision. City of Pompano Beach v. Haggerty, 530 So. 2d 1023, 1025 (Fla. 4th DCA 1988). Since there is no binding precedent from the Florida Supreme Court or the appellate court for the district in which this trial court sits, this court is bound to follow binding legal precedent from the Third DCA. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992); McGauley v. Goldstein, 653 So. 2d 1108, 1109 (Fla. 4th DCA 1995).
Accordingly, we REVERSE and REMAND the case to the trial court with directions to follow the Third DCA decision in Millennium Diagnostic. (SMITH, MAASS, and, STERN, JJ., concur.)
