16 Fla. L. Weekly Supp. 961a
Online Reference: FLWSUPP 1610BUCK
Insurance — Personal injury protection — Judicial notice — Motion to take judicial notice of Medicare schedule and workers’ compensation schedule is denied — Provision of PIP statute allowing consideration of evidence of federal and state fee schedules applicable to “automobile and other insurance coverages” does not include Medicare which is social welfare legislation, not insurance program — Insurer has failed to demonstrate that workers’ compensation schedule is material
PHYSICIAN’S GROUP, L.L.C., (a/a/o Alicia Buckner), Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit, Sarasota County. Case No. 2008 SC 8564 NC. August 12, 2009. Emanuel LoGalbo, Jr., Judge. Counsel: Christina A. Goldberg, Barak & Zitani, L.L.C., Sarasota, for Plaintiff. Adam R. Filthaut, Adams & Diaco, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR JUDICIAL NOTICE AND MEMORANDUM IN SUPPORT OF THE ADMISSIBILITY OF FEDERAL MEDICARE PHYSICIAN’S REIMBURSEMENT SCHEDULE AND FLORIDA’S WORKER’S COMPENSATION REIMBURSEMENT MANUAL
IN THIS ACTION, plaintiff [as assignee of Alicia Buckner] alleges a denial of Personal Injury Protection Benefits (PIP), overdue PIP benefits, interest on denied and overdue PIP benefits and medpay benefits, and interest on late payment of PIP benefits pursuant to a policy of insurance issued by defendant that covered Alicia Buckner.
On August 11, 2009, counsel for the parties presented argument on defendant’s motion that judicial notice be taken of the Federal Medicare Physician’s Reimbursement Schedule and Florida’s Worker’s Compensation Reimbursement Manual. Defendant argues that Florida Statute 627.736(5)(a), makes these matters admissible into evidence due to the presumptively broad scope of the pertinent statutory language: “. . .consideration may be given to evidence of . . . federal and state medical fee schedules applicable to automobile and other insurance coverages. . .”Id.
The parties agree that the only issue for the court to resolve is whether the “other insurance coverages” could lawfully include medicare and worker’s compensation coverages. Each side cites authorities available through Florida Law Weekly Supplement. Plaintiff also cites Atkins v. Allstate Insurance Company, 382 So.2d 1276 (Fla. 3rd DCA 1980). Defendant urges that medicare falls within the scope of the phrase “other insurance coverages” because medicare is insurance, given that its title refers to it as insurance: Health Insurance for the Aged and Disabled Act of 1965, § 1395, et seq., 42 U.S.C.A.
After considering the arguments of counsel, the defendant’s memorandum, and several points of law, the court denies the defendant’s motion. The court concludes
1. That the phrase “automobile and other insurance coverages” requires that court apply rules of statutory construction in order to determine the meaning of “other insurance coverages.”
2. That the phrase “automobile and other insurance coverages” includes a specific term, ‘automobile [coverage],’ followed by a general term, ‘other . . . coverages’.
3. That the rule of statutory construction, entitled noscitur a sociis [asub-category of the rule of construction, entitled“ejusdem generis”] applies so that other words within a string of concepts give meaning to the legislature’s overall intent when enacting language of a particular term followed by a general term.
4. That when construing statutory language by means of the principle of noscitur a sociis, the general term is to be viewed in the light of the specific term: that the general term contain the same or substantively similar legal attributes, the same or substantively similar legal significance, the same or substantively similar legal operative effect, as the specific term.
5. That medicare cannot be deemed to bear the same or substantively similar legal characteristics as automobile insurance, as medicare is “social welfare legislation passed by the Congress to aid the general health and welfare of those over 65 years of age and is not an‘insurance program within the ordinary meaning of the words. * * * ‘It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.’ [Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435, 1443-1444 (1960)].” Atkins, supra, 382 So.2d 1277-78.
6. That the phrase “other insurance coverages” cannot include medicare.
7. Thus, while it may be that, as defendant asserts, it has made use of the medicare schedule in billing its patients, it nevertheless follows that the defendant will not, as a consequence of the court’s ruling here, be entitled to a jury instruction utilizing the “other-insurance-coverages” language for the jury’s consideration.
8. As for the worker’s compensation schedule, the court finds that no sufficient legal argument, either in memorandum form or orally at hearing, was presented by the defendant so as to warrant the conclusion that such evidence is material.
Because of the foregoing, the motion of the defendant is denied.
