16 Fla. L. Weekly Supp. 678a
Online Reference: FLWSUPP 167TOFFA
Insurance — Personal injury protection — Coverage — Medical bills — MRI — Summary judgment is granted in favor of insurer where prior to suit insurer tendered all amounts due for MRI bill, plus interest, penalty, and postage as calculated under PIP statute in effect at time PIP policy was executed
MR SERVICES I, L.L.C., d/b/a C & R IMAGING OF HOLLYWOOD, a/a/o GEORGE TOFFANI, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 08-003464 COCE 53. April 27, 2009. Robert W. Lee, Judge. Counsel: Steven Lander, for Plaintiff. Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, FINAL JUDGMENT IN FAVOR OF DEFENDANT, AND ORDER DISBURSING FUNDS HELD IN THE COURT REGISTRY
THIS CAUSE came before the Court on the 13th day of April 2009 on Defendant’s Motion for Summary Judgment and was heard at 10:00 A.M. at the Broward County Courthouse, 201 S.E. 6th Street, Fort Lauderdale, Florida 33301. Majid Vossoughi, Esq., appeared on behalf of the Defendant, United Automobile Insurance Company, and Steven Lander, Esq., appeared on behalf of the Plaintiff, MR Services I, d/b/a C & R Imaging of Hollywood, a/a/o George Toffani. This Court reviewed Defendant’s Motion for Summary Judgment and having heard argument from counsel for both parties and being otherwise fully advised in the premises makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. Defendant issued a policy of insurance to George Toffani effective 03/24/2007 through 09/24/2007 containing Personal Injury Protection (“PIP”) coverage. Specifically, the policy of insurance took effect at 12:01 A.M. on 03/24/07.
2. During the effective dates of the policy of insurance referenced herein, and specifically on 09/20/2007, George Toffani was involved in an automobile accident. As a result of this accident, Plaintiff performed an MRI of the cervical spine on George Toffani and made a claim for PIP benefits against Defendant. Specifically, Plaintiff performed its MRI of the cervical spine on 11/09/2007 (during the “Gap Period”).1
3. Plaintiff billed Defendant $1,750.00 for its MRI of the cervical spine and on 01/24/2008 served Defendant with a pre-suit demand letter seeking 80% of the full amounts billed (80% of $1,750.00 or $1,400.00).
4. On 02/11/2008, and in response to Plaintiff’s pre-suit demand letter, Defendant processed Plaintiff’s claim in accordance with Fla. Stat. 627.736(5)(b)5.(2007) and Medicare part B schedule — the statute in effect at the time the parties entered into the contract of insurance. Specifically, Defendant tendered to Plaintiff drafts numbered 0264129, 0264128, and 0264127 in the amounts of $1,198.14, $19.50 and $125.35 for PIP Benefits, Interest, and Penalty & Postage.
5. Plaintiff did not cash the drafts tendered by the Defendant and brought the instant lawsuit for $201.86 in PIP Benefits; said sum representing the difference between the amounts tendered pre-suit by the Defendant ($1,198.14) pursuant to Fla. Stat. 627.736(5)(b)5.(2007) and 80% of the full amount of Plaintiff’s medical bill ($1,400.00).LEGAL ANALYSIS
1. An insurance policy is a contract. Fla. Stat. 624.02 (2008).
2. In the context of a policy of insurance issued to an insured, Courts have held that “the statute in effect at the time the insurance contract is executed governs any issues arising under that contract.” Lumbermens Mutual Casualty Company v. Ceballos, 440 So.2d 612 (Fla. 3rd DCA 1983); citing to Metropolitan Life Insurance Co. v. Fugate, 313 F.2d 788 (5th Cir. 1963); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969); Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138 (1937); See also Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996), citing with approval Lumbermens for this well settled legal proposition.
3. The insurance contract at issue took effect on 03/24/07 and this Court finds that liability under said policy of insurance is governed by the statute in effect at the time the insurance contract is executed; to wit, Fla. Stat. 627.736(5)(b)5.(2007).
4. Fla. Stat. 627.736(5)(b)5. provides:
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 of the United States Department of Labor for the 12-month period ending June 30 of that year, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory Health Care, the American College of Radiology, or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 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 of the United States Department of Labor for the 12-month period ending June 30 of that year. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.
5. The maximum allowable amount for Plaintiff’s MRI under the statute in effect at the time the parties entered into the contract of insurance was not greater than the sum Defendant tendered PIP Benefits to Plaintiff in the amount of $1,198.14 .
6. Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiff’s claim for PIP benefits as it tendered all amounts otherwise due and/or owing to Plaintiff in response to Plaintiff’s pre-suit demand letter.
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Final Judgment is hereby rendered in favor of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and against Plaintiff, MR SERVICES I, L.L.C., d/b/a C & R IMAGING OF HOLLYWOOD, a/a/o GEORGE TOFFANI. Plaintiff shall take nothing from this action and Defendant shall go hence without day. The Court reserves jurisdiction to award Defendant attorney’s fees and costs, if applicable. The Clerk of the Court is hereby directed to disburse funds held in the Court Registry in the amount of One Thousand Three Hundred Forty Two Dollars and Ninety Nine Cents ($1,342.99) to counsel for Plaintiff, Lander & Goldman, P.A., Trust Account, without prejudice to any appellate remedies available to Plaintiff.
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1The term “Gap Periodþ is commonly used to refer to the period of time from 10/01/07 through 12/31/07 during which the Florida Motor Vehicle No-Fault Law was repealed by the Florida legislature.
