17 Fla. L. Weekly Supp. 458b
Online Reference: FLWSUPP 1706AFO
Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Insurers are not authorized by section 627.736(5)(a)2.f., 3 or 4 to cap amount of PIP benefits paid for MRI services provided in non-emergency, non-hospital setting by applying Medicare hospital outpatient prospective payment system or any other Medicare restriction or limitations not specified in subsections of PIP statute
AFO IMAGING, INC., as assignee, individually, and on behalf of all those similarly situated, Plaintiff, v. PEAK PROPERTY AND CASUALTY INSURANCE CORP., DAIRYLAND INSURANCE COMPANY a/k/a Sentry Insurance, A Mutual Company, and SIAMCO, Defendants. CLASS REPRESENTATION. Circuit court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 08-CA-21533. Division: C. May 5, 2010. Consolidated With AFO Imaging, Inc. v. Nationwide Mutual Ins. Co., Nationwide General Ins. Co., and Titan Indemnity Co., Case No. 08-CA-021531-I. James M. Barton, II, Judge. Counsel: J. Daniel Clark, Christopher Calkin, Michael Reiss, David M. Caldevilla, Scott Jeeves, and Craig Rothburd, for Plaintiffs. E.K. Cottrell, for Defendants.
AFFIRMED. 36 Fla. L. Weekly D1463b
FINAL JUDGMENT
THIS CAUSE was considered by the Court on May 5, 2010 on the “Motion for Final Summary Judgment dated March 22, 2010,” filed by Plaintiff AFO Imaging, as assignee, individually, and on behalf of all those similarly situated [17 Fla. L. Weekly Supp. 368a]. The Court, having considered the motion, the arguments of counsel, and the record, and being otherwise advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. The pleadings, stipulated facts, and other undisputed materials in the record as would be admissible in evidence demonstrate that there is no genuine issue of material fact and that the Plaintiff and the class members are entitled to a judgment as a matter of law.
2. With respect to Count I of the Second Amended Complaints, this Court hereby ratifies its “Order on Competing Motions for Summary Judgment” dated January 25, 2010 [17 Fla. L. Weekly Supp. 368a], and awards final declaratory judgment in favor of the Plaintiff and the class members against the Defendants, concerning the parties’ respective rights and obligations pursuant to Section 627.736, Florida Statutes (2007-2008),1 which the Court determines and declares as a matter of law are as follows:
[U]nder Section 627.735(5)(a)2.f, 3, and 4, Florida Statutes (2007-2008), “the allowable amount under the participating physicians schedule of Medicare Part B for 2007” sets the lowest amount upon which a [personal injury protection (“PIP”)] insurer’s payments for [magnetic resonance imaging (“MRI”)] services may be based. In other words, the 2007 Medicare Part B participating physicians fee schedule must be used whenever the Medicare fee schedule in effect at the time the MRI services are rendered is “less than the allowable amount under the participating physicians schedule Medicare Part B for 2007. . . .” First, under Section 627.736(5)(a)2.f, the “participating physicians” schedule of Medicare Part B is the proper fee schedule. Second, under Section 627.736(5)(a)2.f and 3, 80% of 200% of the participating physicians schedule Medicare Part B for 2007 is the absolute minimum reimbursement that a PIP insurer may pay an MRI provider. Third, under Section 627.735(5)(a)4, a PIP insurer must pay “regardless” of any other Medicare restrictions or limitations on the number of treatments, or the types or discipline of health care providers-who may be reimbursed for particular procedures or procedure codes.
. . . .
The Court hereby determines and declares as a matter of law that Section 627.736(5)(a)2.f, 3, and 4 do not authorize a PIP insurer to utilize the “Special rule for imaging services” of 42 USC §1395w-4(b)(4), the [Medicare Hospital Outpatient Prospective Payment System (“OPPS”) (a.k.a., the “OPD fee schedule”)] amount, 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 MRI services provided in the State of Florida to a PIP insured in a non-emergency, non-hospital setting since January 1, 2008.
3. With respect to Count III of the Second Amended Complaints, the Plaintiff and those class members who did not opt out of that claim (as identified in “Exhibit A” to the Affidavit of Michelle Moody of Best Evidence Inc., dated May 2, 20102) are hereby awarded and shall recover the following amounts:
a. Defendants Nationwide Mutual Fire Insurance Company, Nationwide General Insurance Company, Titan Indemnity Company, Nationwide Mutual Fire Insurance Company, Nationwide Property & Casualty Insurance Company, Nationwide Assurance Company, Allied Property & Casualty Insurance Company, Depositors Insurance Company, Victoria Select Insurance Company, and Victoria Fire & Casualty Insurance Company, shall pay the total amount of $991,067.46 (as allocated in “Exhibit A” to the Affidavit of Michelle Moody of Best Evidence Inc., dated May 2, 2010), plus post-judgment interest on that amount at the statutory rate pursuant to Florida law, for all of which, let execution issue.
b. Defendants Peak Property and Casualty Insurance Corp., Dairyland Insurance Company, a/k/a Sentry Insurance, A Mutual Co., (SIAMCO) shall pay the total amount of $339,329.40 (as allocated in “Exhibit A” to the Affidavit of Michelle Moody of Best Evidence Inc., dated May 2, 2010), plus post judgment interest on that amount at the statutory rate pursuant to Florida law, for all of which, let execution issue.
4. The Plaintiffs alternative injunctive relief claim under Count II of the Second Amended Complaints is hereby denied, because the Plaintiff concedes that the foregoing remedies provided under Counts I and III are adequate under the facts and circumstances of this case.
5. The Court reserves jurisdiction to enforce this judgment, and to preside over all matters relating to the administration, implementation, effectuation, and enforcement of the judgment, including, without limitation, overseeing further notice and disbursement of funds to the class members through the appointed Class Administrator or as otherwise approved.
6. The Court also reserves jurisdiction to determine the Plaintiff’s claims for reasonable attorneys’ fees and costs, and for serving as a class representative.
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1Citations herein to Section 627.736, Florida Statutes (2007-2008), and any subsections thereof refer to the versions of that statute enacted by Chapter 2007-324, Laws of Florida (2007) and Chapter 2008-220, Laws of Florida (2008).
2See Notice of Filing of Affidavit of Michelle Moody, dated May 2, 2010.
