17 Fla. L. Weekly Supp. 660a
Online Reference: FLWSUPP 1708ADVA
Insurance — Personal injury protection — Coverage — MRI — PIP statute does not authorize insurer to utilize special rule for imaging services in U.S. Code, hospital outpatient prospective payment system or any other Medicare restrictions or limitations not expressly described in section 627.736(5)(a)2.f, 3 and 4 when determining amounts due for MRI services provided in non-emergency, non-hospital setting since January 1, 2008
ADVANTAGE OPEN MRI, INC., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and STATE FARM FIRE AND CASUALTY COMPANY, Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County. Civil Division. Case No. 08-CA-020931, Division K. June 1, 2010. William P. Levens, Judge. Counsel: David M. Caldevilla, de la parte & Gilbert, P.A., Tampa, and Michael R. Bray, Craig E. Rothburd and Scott Jeeves, for Plaintiff. David B. Kampf, for Defendant.
ORDER ON COMPETING MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE was before the Court on May 7, 2010 concerning: (1) the “Motion for Partial Summary Judgment” filed by Plaintiff Advantage Open MRI, Inc.; and (2) the “Amended Motion for Summary Judgment and Incorporated Memorandum of Law” filed by the Defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company. After considering the motions, the parties’ memoranda of law, the arguments of counsel and the record, and being otherwise fully advised in the premises, the Court
ORDERED AND ADJUDGED as follows:
1. There is no genuine issue of material fact, and the Plaintiff is entitled to a partial summary judgment as a matter of law concerning its claim for declaratory relief.
2. This Court agrees with and adopts the reasoning set forth in AFO Imaging, Inc. v. Alpha Property & Casualty Ins. Co., 16 Fla. L. Weekly Supp. 533a (Fla. 13th Cir. Ct. Apr. 13, 2009); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., Fla. L. Weekly Supp. 1705AFO, (Fla. 13th Cir. Ct. Jan. 25, 2010), and All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., 685 F.Supp.2d 1297, 2010 WL 569881 (S.D. Fla. 2010).1 In accordance with those decisions, this Court concludes and declares as a matter of law that that Section 627.736(5)(a)2.f, 3, and 4, Florida Statutes (2007-2009)2 do not authorize a personal injury protection (“PIP”) insurer to utilize the “Special rule for imaging services” of 42 USC §1395w-4(b)(4), the Hospital Outpatient Prospective Payment System (“OPPS”), also known as the “OPD fee schedule,” or any other Medicare restrictions or limitations not expressly described by Section 627.736(5)(a)2.f, 3, and 4, when determining the amounts due for magnetic resonance imaging (“MRI”) services provided in the State of Florida to a PIP insured in a non-emergency, non-hospital setting since January 1, 2008.
3. Consequently, the Plaintiff’s motion for partial summary judgment is hereby GRANTED, and the Defendants’ amended motion for summary judgment is hereby DENIED.
4. This is a non-final order. The Court reserves jurisdiction to enter a final judgment after considering and determining the Plaintiff’s remaining claims, as well as any motions for attorneys’ fees and costs.
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1This Court respectfully disagrees with the contrary decisions reached in MRI Services, I, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 46a (Fla. Broward County Ct. Nov. 4, 2009) and Bravo v. Altamonte Springs Diagnostic Imaging, Inc. v. State. Farm Fire & Casualty Co., 17 Fla. L Weekly Supp. 194b (Fla. Orange County Ct. Jan. 14, 2010).
2As used herein, all citations to the “2007-2009” versions of Section 627.736, Florida Statutes and all subsections thereof, refer to the versions in effect since January 1, 2008, as adopted in Chapter 2007-324, Laws of Florida (2007), Chapter 2008-220, Laws of Florida (2008) and Chapter 2009-21, §86, Laws of Florida (2009).
