14 Fla. L. Weekly Supp. 786a

Insurance — Personal injury protection — Coverage — Lawfully rendered services — Medical provider that lacks massage therapy establishment license cannot recover from insurer or insured for massage therapy treatment — Possession of county occupational license does not obviate need for massage establishment license

MEDICAL CORAL WAY CTR, A/A/O CURBELO SEBASTIAN, Plaintiff, vs. INTEGON INDEMNITY CORP., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-9858 SP 26. November 17, 2006. Bronwyn C. Miller, Judge. Counsel: Neil Gonzalez. Steven Leiter.

ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE, having come before the Court on November 16, 2006 upon Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby GRANTS Defendant’s motion on the following grounds:

Background:

1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on May 11, 2004. Following the accident, Curbelo Sebastian sought treatment from Plaintiff, MEDICAL CORAL WAY CENTER. Plaintiff accepted an assignment of PIP benefits from Sebastian in exchange for providing medical services.

2. Plaintiff alleges Sebastian was covered by a policy of insurance issued by Defendant, INTEGON INDEMNITY CORPORATION, at the time of said automobile accident.

3. MEDICAL CORAL WAY CENTER billed INTEGON INDEMNITY CORPORATION for massages allegedly rendered to Sebastian between May 12, 2004 and June 24, 2004. Specifically, MEDICAL CORAL WAY CENTER claimed massages were rendered to Sebastian on May 12, 2004, May 13, 2004, May 14, 2004, May 17, 2004, May 18, 2004, May 19, 2004, May 20, 2004, May 21, 2004, May 24, 2004, May 25, 2004, May 26, 2004, May 28, 2004, June 1, 2004, June 3, 2004, June 4, 2004, June 7, 2004, June 8, 2004, June 9, 2004, June 14, 2004, June 15, 2004, June 18, 2004, June 21, 2004, June 22, 2004, June 23, 2004, and June 24, 2004.

4. INTEGON INDEMNITY CORPORATION did not render payment to MEDICAL CORAL WAY CENTER for these bills and Plaintiff filed suit for breach of the insurance contract.

5. When MEDICAL CORAL WAY CENTER provided the massages to Sebastian, it did not have a massage establishment license, as required pursuant to Florida Statute § 480.043.

Conclusions of Law:

Summary Judgment Standard

It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). INTEGON INDEMNITY CORPORATION has moved for summary judgment, alleging treatment was not lawfully rendered.

Definition of Massage Establishment

Under Florida Statute § 480.043(1), no massage establishment shall be allowed to operate without a license granted by the Department of Health in accordance with the rules adopted by the board. In order for a medical provider to receive compensation from an insurer, it must lawfully render its treatment.

Florida Statute § 480.033(7) defines a massage establishment as: “. . . a site or premises, or portion thereof, wherein a massage therapist practices massage.” Chapter 64B7-26.001 of the Florida Administrative Code, Massage Establishments, defines a massage establishment as: “. . . a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation.” Florida Administrative Code 64B7-26.003(2) Massage Establishments Operations states:

(2) Personnel. A licensed massage therapist must be on the premises of the establishment if a client is in a treatment room for the purpose of receiving massage therapy.

It is undisputed that Plaintiff falls under the definition of a massage establishment defined in Fla. Stat. §480.043(7) and F.A.C. Chapter 64B7-26.001 and 64B7-26.003. Furthermore, there is no evidence to suggest that a licensed massage therapist was on the premises during the dates of service in question.¹

Plaintiff did not become licensed with the State of Florida as a massage establishment until February 16, 2005, long after treatment was rendered by Plaintiff to Sebastian.

Penalties of § 480.047(1)(a)-(c)

Furthermore, Fla. Stat. § 480.047(1)(a)-(c) provides:

It is unlawful for any person to . . . practice massage unless duly licensed under this chapter or unless otherwise specifically exempted from licensure under this chapter. . . [or] [p]ermit an employed person to practice massage unless duly licensed as provided herein.

Thus, even assuming the facility did not qualify as an “establishment,” the physical therapist was not legally permitted to administer massage. Furthermore, it was unlawful for INTEGON INDEMNITY CORPORATION to permit the physical therapist to administer massage.

Lawfully Rendered Treatment

Finally, Florida Statutes § 627.736(5)(a) (2003) mandates that an insurer may only pay for such charges for treatment lawfully rendered. Florida Statute § 627.736(5)(a) states in pertinent part:

. . . (5)(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person. . .may charge only a reasonable amount for the services . . . rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment. . . (Emphasis added).

Furthermore, Florida Statutes § 627.736(5)(e) states:

. . . No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph . . . (emphasis added).

Reading the relevant sections of Florida Statute § 627.736(5) in para materia with § 480.043(1), it is undisputed that unless Plaintiff had a massage establishment license, Plaintiff could not lawfully render treatment to the insured.

In State Farm Fire & Cas. Co. v. West Dixie Rehab & Medical Center, 11 Fla. L. Weekly Supp. 788b (11th Jud. Cir. App. 2004), the Court was faced with circumstances similar to the case at bar. In West Dixie, the Court addressed the issue of whether a personal injury protection insurer can be liable to an assignee medical provider which does not have either an occupational or a medical license, even though it employs licensed medical professionals who provided treatment to the insured. The Court found that based on Ortega v. United Automobile Ins. Co., 847 So. 2d 994 (Fla. 3d DCA 2003), the provider could not have lawfully rendered treatment without a massage establishment license.

The Court reasoned that the entity is required to meet standards set by the Board of Massage Therapy including having “. . . rules governing the operation of [the] establishments and their facilities, personnel, safety and sanitary requirements, financial responsibility, insurance coverage, and the license application and granting process.” § 480.043(2), Fla. Stat. (2001). The policy behind these standards is protection of the public. § 480.032, Fla. Stat. (2001).

If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Moreover, if the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc.,766 So. 2d 229 (Fla. 4th DCA 2000). The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1150 (Fla. 2000). Where the wording of the law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law. United Auto Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2002). Therefore, because Plaintiff did not have a massage establishment license pursuant to Florida Statute § 480.043, Defendant had no legal obligation to make payment to Plaintiff and Plaintiff cannot recover said amounts from the insured.

Plaintiff mistakenly relies on Progressive Express Insurance Company v. Village Chiro Health Center, Inc., 11 Fla. L. Weekly Supp. 818b (17th Jud. Cir. App.) for the proposition that it was not required to have a massage establishment license during the dates it allegedly rendered treatment to the insured. In Village Chiro Health, the Court relied on the definition of “establishment” in F.A.C. 64B7-26.001. At that time, the Rule carved out an exception for chiropractors’ offices. F.A.C. 64B7-26.001(2) was amended on August 5, 2003 as referenced above and specifically requires an entity where massage is practiced to be licensed. Supra. Therefore, Village Chiro Health is inapplicable to the instant case. Moreover, Plaintiff argues that its possession of a Miami-Dade County occupational license bypasses the need for a massage establishment license. The Court finds this argument wholly untenable based on the plain and unambiguous language of Fla. Stat. § 480.043(1).

Conclusion:

Plaintiff did not have a massage establishment license during the time that Plaintiff allegedly treated the insured. Therefore, Plaintiff did not lawfully render treatment to the insured. As a matter of law, Defendant is under no legal obligation to pay for said treatment and its Motion for Summary Judgment is hereby GRANTED.

WHEREFORE, Defendant shall go hence forth without day. The Court reserves jurisdiction to awarded attorney’s fees and costs, if applicable.

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¹Each establishment shall obtain a license from the Department as required by Section 480.043(1), Florida Statutes, by submitting a completed form BMT3 (Rev. 7/97) Application for License Massage Establishment. (emphasis added). See F.A.C. Chapter 64B7-26.002.