16 Fla. L. Weekly Supp. 473a

Online Reference: FLWSUPP 165BELVI

Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — No merit to claim that medical provider rendered unlawful treatment because it did not have active massage establishment license at time massage therapy was rendered where rule defines massage establishment as site where therapy is rendered by massage therapist, and insured’s therapy was rendered by chiropractor

TRI-COUNTY SPINE INJURY CENTER, INC., F/K/A HOLISTIC HEALTHCARE CLINIC, INC., a Florida Corporation (a/a/o Chrisnel Belvine), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-14427 COCE (53). March 3, 2009. Robert W. Lee, Judge. Counsel: Russel Lazega/Yasmin Babain, J.D., Law Clerk, The Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (RE:MASSAGE ESTABLISHMENT LICENSE DEFENSE)

THIS CAUSE came before the Court for hearing on February 19, 2009 on Plaintiff’s Motion for Partial Summary Judgment (re: Massage Establishment License Defense), and the Court having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:

Background: This is a multi-count P.I.P. case. Plaintiff moved for partial summary judgment as to Defendant’s massage establishment license affirmative defenses: #4 (alleging Plaintiff violated Florida Statute §480.047, §480.043, and §627.736(4)(g)); #5 (alleging Plaintiff knowingly submitted false or misleading bills to the Defendant); #6 (alleging Plaintiff violated the misrepresentation and fraud provision of the policy); #7 (alleging no benefits were due and owing); #8 (alleging Plaintiff violated Florida Statute §480.043(1)); and #9 (alleging Plaintiff violated Florida Admin. Code 64B7-26.002). In sum, Defendant argued that Plaintiff committed fraud and rendered unlawful services because Plaintiff did not have an active massage establishment license at the time massage services were rendered in this case. Plaintiff moved for partial summary judgment as to Defendant’s massage establishment license defenses asserting that the massage establishment licensure provisions of Florida Admin. Code 64B7-26 did not apply to the Plaintiff’s services as the services in question were rendered by a chiropractor and not a licensed massage therapist.

Conclusions of Law: Florida Admin. Code 64B7-26.002(1) “Licensure of Massage Establishments” provides: “[e]ach 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, incorporated herein by reference, together with the fee set forth in Rule 64B7-27.003, F.A.C.” [emphasis added]. Florida Admin. Code 64B7-26.001(2) further provides the definition for the term “establishment” as being “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation” [emphasis added].

Florida Statute §460.403(9)(a) allows a chiropractor to administer what is in essence massage. The applicable massage establishment rule on its face applies only to “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation” [emphasis added]. The Court finds that Plaintiff did not violate Florida Admin. Code 64B7-26 because no massage therapist was involved in the treatment at issue.

This case is distinguished from State Farm Fire and Casualty Co. v. West Dixie Rehabilitation & Medical Center, 11 Fla. L. Weekly Supp. 788 (11th Cir. Ct. 2004), wherein the massage services rendered to the patient were performed by a massage therapist. The uncontroverted evidence in the instant case is that a chiropractor, not a massage therapist, rendered the massage services to the patient in this case.

Accordingly, it is hereby

ORDERED AND ADJUDGED the Plaintiff’s Motion for Partial Summary Judgment is GRANTED.