16 Fla. L. Weekly Supp. 13a
Insurance — Personal injury protection — Standing — Assignment — Bill collection agency — Trial court that dismissed bill collection agency’s suit for PIP benefits was correct to extent it determined that agency lacked standing to seek statutory recovery of PIP benefits because it is not healthcare provider listed in PIP statute — However, trial court erred in dismissing agency’s suit because breach of contract claim by agency based on assignment from medical provider through common law to recover after-loss contractual PIP benefits is not prohibited by PIP statute
GABLES INSURANCE RECOVERY, a/a/o LIZEL LUJAN, Appellant, vs. STATE FARM FIRE & CASUALTY CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-300 AP. L.C. Case No. 06-16779 SP 25. October 27, 2008. An Appeal from the County Court for Miami-Dade County, Nuria Saenz, J. Counsel: Robert N. Pelier, Law Office of Robert N. Pelier, P.A., and G. Bart Billbrough, Billbrough & Marks P.A., for Appellant. Robert R. Coulombe, Jr., Clark, Robb, Mason, Coulombe, Bushman & Cecere, for Appellee.
(Before RONALD M. FRIEDMAN, SCOTT M. BERNSTEIN and SARAH I. ZABEL, JJ.)
(FRIEDMAN, J.) This is an appeal from a final order of dismissal with prejudice. On March 16, 2006, the insured, Lizel Lujan, was involved in an automobile accident and sustained personal injuries. She was insured under an automobile insurance policy containing personal injury protection (PIP) benefits with Appellee State Farm Fire and Casualty Co. She sought treatment from Atenea Medical Center, Inc., a medical provider, and assigned her PIP benefits to it. After treatment, Atenea Medical Center, Inc. assigned her PIP benefits to Appellant Gables Insurance Recovery, Inc., a bill collection agency.
Appellant filed a breach of contract action seeking recovery under the insured’s automobile policy for PIP benefits and a declaratory action.1 Appellee moved to dismiss the breach of contract action. The trial court dismissed the breach of contract action with prejudice and determined that under the PIP statute Appellant lacked standing as PIP benefits are never payable “to a party who has not performed medical services.”
The standard of review for a final order of dismissal with prejudice based on a lack of standing is de novo. Sumner v. Gros, 958 So. 2d 1038 (Fla. 1st DCA 2007). The issue on appeal is whether a bill collection agency that did not render medical services to an insured under section 627.736(5)(a), Florida Statutes (2006) has standing to recover after a loss contractual of PIP benefits pursuant to a valid assignment from the medical provider.
Appellant argues, relying on Professional Consulting Services, Inc. v. Hartford Life & Accident Insurance Co., 849 So. 2d 446 (Fla. 2d DCA 2003), that the trial court erred in finding that it lacked standing to bring the breach of contract action because: 1) section 627.736(5)(a), Florida Statutes (2006) does not mean that PIP benefits are only payable to a physician, hospital, clinic or other person or institution lawfully rendering treatment; and 2) section 627.736(5)(a), Florida Statutes (2006) does not prohibit an assignment to third party non-medical providers like the Appellant after a loss of contractual PIP benefits. Appellee argues, relying on Federated National Insurance Co. v. Physicians Charter Services, 788 So. 2d 403 (Fla. 3d DCA 2001), review denied, 807 So. 2d 654 (Fla. 2002), that the Appellant, who did not provide medical services, lacked standing to recover after loss contractual PIP benefits since such payment is limited by section 627.736(5)(a), Florida Statutes (2006) to healthcare providers. This matter will entail statutory construction.
As a general rule of statutory construction, when a statute’s language is clear and unambiguous, the statute must be given its plain and ordinary meaning. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). The PIP statute to be examined is section 627.736(5)(a), Florida Statutes (2006) entitled “charges for treatment of injured persons,” part of the Florida Motor Vehicle No-Fault Law.2 This PIP statute is not of doubtful meaning and its interpretation is one of law.
The Third District Court of Appeal interpreted the 2000 version of this PIP statute in Federated National Insurance Co., 788 So. 2d at 403, and reversed a summary judgment against the PIP insurer, and held that “there is no provision in the statute for the payment of policy benefits to a third party who has not performed medical services.” Id. at 404. The defendant sought to directly recover PIP benefits even though it did not actually perform any medical services associated with MRIs, and was not a physician, hospital, clinic or other person lawfully rendering treatment. Id. Appellant argues the trial court misapplied the holding in Federated National Insurance Co. and that case is factually distinguishable because it involves a MRI broker.
Although it involved a corporate entity providing MRI services, the language of the short opinion of Federated National Insurance Co. does not mention that it involves a MRI broker (an unimportant fact in that opinion). But, in Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Co., 811 So. 2d 705 (Fla. 5th DCA 2002), the Fifth District Court of Appeal adopted the reasoning of Federated National Insurance Co., and held, in part, that the MRI brokering arrangement was a fee-splitting scheme to compensate for MRI referrals, a violation of section 817.505, Florida Statutes (2000). Id. Unlike Medical Management, Appellant is not a MRI broker and this case does not involve the public policy implications against illegal patient brokering or fee-splitting.
But, the Appellee argues that the language of section 627.736(5)(a), Florida Statutes (2006) is clear that it does not permit payment of PIP benefits by an insurer to a bill collection agency. Based on Federated National Insurance Co., lower courts have determined, in following the plain meaning of section 627.736(5)(a), that a billing or collection agency is not a health care provider, physician, hospital, clinic or other person or institution lawfully rendering treatment.3 Further, it is undisputed by the parties that according to the other part of the holding of Medical Management, billing services do not constitute medical services under the PIP statute.4
In contrast, the Second District Court of Appeal has interpreted the 2000 version of the PIP statute differently, and broadened the scope of who can render services under the statute. In interpreting the above statute, the Second District Court of Appeal in Professional Consulting Services, Inc. held in part that a non-medical provider that was not listed among those enumerated in the statute could still be entitled to be paid PIP benefits. This was because the legislature had not expressly prohibited payment of PIP benefits to non-medical providers. In bolstering its interpretation of the statute, the Second District Court of Appeal in Professional Consulting Services, Inc., 849 So. 2d at 448 used (but did not apply) the 2001 amendment. It reasoned that if the insurer’s position was correct that the four categories mentioned in section 627.736(5)(a) were meant to be an exhaustive list of the only parties that may be paid PIP benefits, then the 2001 amendment would be unnecessary since the statute would already prohibit claims by brokers because they are not one of the four named entities.5
In relying upon this broader interpretation, Appellant argues that a debt collection agency is excluded from the definition of broker in section 627.732(1), Florida Statutes, and thus specifically recognizes a debt collector’s right to bring a claim for PIP benefits against an insurer.
We reject this interpretation of the PIP statute. While Appellant is excluded from the definition of a broker, this does not mean it is akin to a medical provider under the PIP statute. Appellee correctly argues that Federated National Insurance Co. did not differentiate as to the types of third parties submitting claims for PIP benefits.
It is well-established that if there is an unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district. Miller v. State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008). In applying the conflicting case law to Appellant’s first argument, we find Federated National Insurance Co. is the controlling law. The 2000 version of the PIP statute clearly and expressly limited the entities which may recover statutory PIP benefits to a physician, hospital, clinic, or other person or institution lawfully rendering treatment. The maxim unius et exclusio alterius means that when a statute expressly lists certain items, those items omitted are deemed excluded. Sutherland 3A Statutes and Statutory Construction §72.4 p. 726 (West 6th ed. 2003). The trial court is correct to the extent it determined that Appellant lacked standing to seek a statutory recovery for PIP policy benefits against the Appellee because Appellant is not a medical provider or one of the enumerated statutory entities. Appellant’s first argument amounts to an invitation to abrogate legislative power and must be declined. Holly, 450 So. 2d at 219.
But, Appellant also argues that Federated National Insurance Co. is factually distinguishable because it does not involve an after loss assignment of contractual PIP benefits, which give rise to its right to sue for breach of contract, and is not prohibited by the PIP statute. We agree that unlike Federated National Insurance Co., this action is based in contract. Furthermore, the trial court stated that the ruling of Federated National Insurance Co. was “without providing for any exceptions.” However, we believe this statement constituted error based on the following analysis.
The Appellant relies upon the common law delineated in West Florida Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209 (Fla. 1917) and Gisela Investments N.V. v. Liberty Mutual Ins. Co., 452 So. 2d 1056 (Fla. 3d DCA 1984) with regards to insurance policy contractual benefits, in that after loss insurance benefits may be validly assigned to a third party. Appellant argues that as a third party assignee of an after loss assignment of contractual PIP benefits, it has standing under Professional Consulting Services, Inc. v. Hartford Life & Accident Insurance Co., 849 So. 2d 446 (Fla. 2d DCA 2003). In Professional Consulting Services a billing service sought payment for services provided to the insured by a medical provider. Id. at 447. The defendant insurer refused the claim and argued that it was only required to make payment to the four entities mentioned in the above statute. Id.
The court in Professional Consulting Services disagreed with the insurer and interpreted the language of the above statute as not prohibitive of assignment by an insured of after loss PIP benefits to a non-medical provider third party, because it is silent as to any legislative prohibition of such an assignment. Id. at 448. It reasoned that if the legislature had intended to prohibit after loss assignments of PIP benefits to third parties who were not medical providers, the language would have stated it. Id. It held that a PIP insured may assign an after loss claim to a third party non-medical provider. Id. at 448.
Professional Consulting Services distinguished Federated National Insurance Co. because it did not involve any assignment of post loss contractual PIP benefits from the insured. Id. at 447. There is no controlling law in the Third District Court of Appeal involving assignment of post loss contractual PIP benefits. Further, Professional Consulting Services distinguished Medical Management, 811 So. 2d at 705, because it never addressed the issue of whether an assignment was permissible itself but its holding was based on the reasonableness of the PIP charges. Professional Consulting Services, 849 So. 2d at 449.
Based on Professional Consulting Services, Inc., other lower courts have held that a collection agency has standing to bring an action where a medical provider received an assignment from the insured and, in turn, assigned it to the collection agency assuming the medical provider received a valid assignment from the insured. Recovery Specialists, Inc. a/a/o Kara Luster v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 910a (Fla. 4th Cir. Ct. Sept. 9, 2003) (denying summary judgment for insurer); Recovery Specialists, Inc. a/a/o Jacksonville Emergency Consultants (Nicole Aaron) v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 910a (Fla. 4th Cir. Ct. Aug. 28, 2003) (same). These courts indicated that no language existed in the above statute which authorized or prohibited non-medical providers from accepting contractual assignments (this Court has not been requested to rule on the validity of the assignment from the medical provider).
It is well-established that courts are not permitted to read requirements into a statute which have not been expressly imposed by the legislature. Where the legislature intends to prohibit certain conduct under the PIP statute, it does so clearly and expressly. Regional MRI of Orlando, Inc. v. Nationwide Mut. Fire Ins. Co., 844 So. 2d 1102, 1108 (Fla. 5th DCA 2004). We find that the trial court erred by placing more requirements into the PIP statute.
We hold that a breach of contract claim by a non-medical provider, based on the assignment itself from the medical provider through the common law to recover after loss contractual PIP benefits, is not prohibited by the language of the PIP statute. Unlike Federated National Insurance Co., 788 So. 2d at 403, which involved a direct assignment by an insured to a third party, this contractual action was based on an assignment from the medical provider which was based on an assignment from the insured to recover after loss contractual PIP insurance benefits (assuming that assignment was valid). The Appellant stood in the place of the medical provider who had the right to bring the claim, and the Appellant brought the claim on its behalf.
Therefore, in regard to Appellant’s second argument, we find that the trial court erred in determining that the Appellant lacked standing, and we reverse the final order of dismissal with prejudice as to the breach of contract action. Appellant’s motion for appellate attorney’s fees pursuant to section 627.428, Florida Statutes (2006) is granted, conditioned on it prevailing below. (ZABEL, J. concurs. BERNSTEIN, J., dissents with opinion.)
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1The declaratory action was dismissed in a prior order of dismissal dated February 15, 2007 and is not an issue in this appeal.
2This statute states in relevant part:
[a]ny physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount for the products, services and accommodation rendered, and the insurer providing such coverage may pay such charges directly to such person or institution lawfully rendering such treatment. . . .
3These courts hold that while a collection agency can sue for a breach of contract based on an assignment from a medical provider that obtains an assignment from an insured, a collection agency does not have standing to pursue a PIP action under the statute. New Hampshire Indem. Co. v. Equinox Bus. Credit Corp., 10 Fla. L. Weekly Supp. 172a (Fla. 9th Cir. Ct. Dec. 17, 2002) (a billing or factoring company is not one of the enumerated entities lawfully rendering treatment under the PIP statute); Recovery Specialists, Inc. a/a/o Jacksonville Emergency Consultants (John Haley) v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 911a (Fla. 4th Cir. Ct. July 7, 2003) (summary judgment for insurer); Recovery Specialists, Inc. a/a/o Jacksonville Emergency Consultants (Halida Halilovic) v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 910a (Fla. 4th Cir. Ct. July 1, 2003) (debt collection agency is excluded from the list of entities which may recover under the statute by clear and express terms); Recovery Specialists of JAX, Inc. a/a/o Emergency Med. Specialists, P.A. (Roberta Murphy) v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 427a (Fla. 4th Cir. Ct. Apr. 17, 2003) (same).
4The Medical Management court held that “there is simply nothing medically necessary about a billing which compensates for the referral to a particular MRI provider and/or the cost of billing for the provider’s services.” Medical Management, 811 So. 2d at 706.
5Section 627.736, Florida Statutes was amended in 2001 by Chapter 2001-271 to include a definition of a broker which corresponds to amended section 627.736(5)(b)(1), Florida Statutes. The 2001 amendment to section 627.736(5)(b)(1), Florida Statutes which the trial court and the Appellee rely upon added in pertinent part: “an insurer or insured is not required to pay a claim made by a broker or by a person making a claim on behalf of a broker.” The new definition codified the existing law found in the holding of Federated National Insurance Co. that MRI brokers are not entitled to be compensated by PIP insurers. 7 Fla. Prac. Motor Vehicle No-Fault Law (PIP) §1:7 (2007-08). The amendment reflected the legislative theme of attacking fraud and kickbacks. Id.
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(BERNSTEIN, J., dissenting.) I respectfully dissent. Different appellate courts reached different conclusions interpreting the same provisions of the PIP statute involved here. The majority would be free to follow any one of those opinions, if none were “controlling.” But the Third District Court of Appeal ruled unequivocally in Federated National Insurance Co. v. Physicians Charter Services, 788 So. 2d 403 (Fla. 3d DCA 2001), that PIP benefits are not payable to a party who has not performed medical services. Therefore, I would affirm the trial court’s dismissal with prejudice.
The majority goes to great lengths to “factually distinguish” the Federated National opinion. Let’s review that opinion, in its entirety:
PER CURIAM.
We reverse the three separate summary judgments rendered in declaratory judgment actions brought by appellee, Physicians Charter Services, Inc., (“PCS”), against appellant, Federated National Insurance Company (“Federated”).
PCS is not entitled to recover Personal Injury Protection (PIP) benefits for magnetic resonance imaging services allegedly provided to Federated’s insureds, because PCS does not perform necessary medical services and is not a “Physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by PIP insurance.” §627.736, Fla. Stat. (2000). There is no provision in Florida’s personal injury protection statutes for the payment of policy benefits to a third party who had not performed medical services. Thus the trial court erred in finding Federated liable for payment of PIP benefits to PCS, and in granting the final summary judgment in favor of PCS. Accordingly, the orders below are reversed.
The majority simply cannot “factually distinguish” an opinion which contains no recitation of facts. The majority states, for example: “(w)e agree that unlike Federated National Insurance Co., this action is based in contract.” But how does the majority know that the Federated National case was not also based in contract? The opinion is silent on this point. So the majority cannot use this as a distinguishable “fact.” Similarly, the majority relies on an opinion from the Second DCA1 which attempted to “distinguish” Federated National “because it did not involve any assignment of post loss contractual PIP benefits from the insured.” Again, and with all due respect, how did the 2nd DCA know that? It sure does not say so in the Federated National opinion. And even if it had, this Court is bound to follow the 3rd DCA, not the 2nd DCA.
While there may be good public policy reasons to question the 3rd DCA’s Federated National opinion, there is no excuse not to follow it. The Federated National holding is clear and unequivocal. The trial court was correct to follow it, and so should we.
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1Professional Consulting Services, Inc. v. Hartford Life & Accident Insurance Co., 849 So. 2d 446 (Fla. 2d DCA 2003).
