17 Fla. L. Weekly Supp. 686a
Online Reference: FLWSUPP 1708VOLP
Insurance — Personal injury protection — Coverage — Where language of PIP policy which expressly states that insurer will pay 80% of reasonable expenses is not in conflict with 2008 PIP statute allowing insurer to pay in accordance with Medicare fee schedule, policy language controls reimbursement
MRI ASSOCIATES OF ST. PETE, d/b/a Saint Pete MRI, as assignee of Craig Volpe, Plaintiff, vs. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 09-10692, Division K. MRI ASSOCIATES OF ST. PETE, d/b/a Saint Pete MRI, as assignee of Chase Atari, Plaintiff, vs. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendant. Case No. 09-12673, Division H. (Consolidated cases.) May 20, 2010. Paul T. Jeske, Judge. Counsel: Lorca Divale, Scott R. Jeeves and David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiff. Reginald A. Edmond, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE was considered by the Court on March 29, 2010 concerning: (1) the Motion for Summary Judgment filed by Plaintiff MRI Associates of St. Pete, d/b/a Saint Pete MRI, as assignee of Craig Volpe and Chase Atari, (the “MRI Provider”); and (2) the Motion for Summary Judgment filed by Defendant Safeco Insurance Company of Illinois (the “Insurance Company”). The Court, having considered the motions, the responses thereto, the stipulations of fact, the arguments of counsel, and the court file, and being otherwise advised in the premises,
ORDERED AND ADJUDGED as follows:Introduction
1. The pleadings, stipulations, and admissible evidence of record demonstrate that there is no genuine issue as to any material fact, and that the MRI Provider is entitled to a judgment as a matter of law. Therefore, based on the findings and conclusions set forth herein, the MRI Provider’s motion for summary judgment is hereby GRANTED, and the Insurance Company’s motion for summary judgment is hereby DENIED.
2. In these consolidated cases, the MRI Provider has claims seeking damages and declaratory relief against the Insurance Company for underpaying personal injury protection (“PIP”) benefits associated with medical services which the MRI Provider rendered to the Insurance Company’s insureds, Craig Volpe and Chase Atari.
3. Both lawsuits raise identical legal issues arising under the same statutory provisions. As alleged in the amended complaints, the MRI Provider essentially contends that the Insurance Company underpaid the amount of PIP benefits due by erroneously relying upon the provisions of Section 627.736(5)(a)2.f, Florida Statutes (2008), instead of the provisions of Section 627.736(1)(a) and (5)(a), Florida Statutes (2008) and the provisions of the insurance policy.
4. The parties have filed joint stipulations of facts concerning the claims associated with Craig Volpe and Chase Atari. By Agreed Order dated October 21, 2009, the Court held that there are “no remaining issues of material fact to be determined, only questions of law remain for the Court to decide.”
5. As framed by the parties’ joint stipulations, the legal issues to be determined are whether the Insurance Company is required to reimburse the MRI Provider at 80% of its “reasonable expenses” pursuant to Section 627.736(1)(a) and (5)(a)1, Florida Statutes (2008), and whether Section 627.736(5)(a)2, Florida Statutes (2008) defines a “reasonable expense” as contemplated by Section 627.736(1)? Aside from these legal issues of statutory construction, the Insurance Company has waived all other statutory and contractual defenses to payment. See, Stipulation of Facts, at ¶ 8-11.
Applicable Statutory Provisions
6. In pertinent part, the pre-January 1, 2008 version of Section 627.736, Florida Statutes (the “Former PIP Statute”) provided the following general rule for paying charges by health care providers for services rendered to a PIP insured:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs; however, this sentence does not affect the determination of what other services or procedures are medically necessary.
. . . . .
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
(Emph. added). Thus, the pre-2008 version of the PIP statute “required” that PIP insurers “shall” pay medical bills at 80% of the “reasonable” charge, and provided how a reasonable charge is to be determined.
7. Effective on October 1, 2007, the Florida Motor Vehicle No-Fault Law was automatically repealed by a “sunset” provision. See, Ch. 2003-411, §19, Laws of Fla. (2003). Thereafter, effective as of January 1, 2008, the Legislature enacted a new set of statutes as the Florida Motor Vehicle No-Fault Law. See, Ch. 2007-324, §8, Laws of Fla. (2007).
8. In pertinent part, the new version of Section 627.736 that became effective as of January 1, 2008, identifies two alternative methodologies for paying medical benefits claims, and states:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(e), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. However, the medical benefits shall provide reimbursement only for such services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided by any of the . . . persons or entities [listed in subparts 1 through 5] . . . .
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies, and care,[1] 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part. B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
4. Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.
5. If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
(Emph. added). Thus, under the new version of Section 627.736 that became effective as of January 1, 2008 (the “New PIP Statute”), the Legislature allows PIP insurers to pay medical benefit claims under either: (A) the pre-existing mandatory methodology of paying 80% of the reasonable charges required by Section 627.736(1)(a) and (5)(a)1, or (B) a new permissive methodology of paying 80% of the list of maximum charges described in Section 627.736(5)(a)2.a through f.
9. In summary, under the New PIP Statute that became effective as of January 1, 2008, the Legislature decreed that:
(a) The PIP insurer “shall” pay 80% of all reasonable expenses for medically necessary services. See, §627.736(1)(a), Fla. Stat. Any physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by PIP insurance may charge the insurer and injured party only a reasonable amount. See, §627.736(5)(a)1, Fla. Stat. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. Id. In determining what is a “reasonable” charge, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
(b) Or, the PIP insurers “may” limit reimbursement of medical bills to 80% of the list set forth in Section 627.736(5)(a)2.a-f, Florida Statutes. “If” so, the health care provider may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s PIP coverage due to the coinsurance amount or maximum policy limits. Additionally, any lawfully provided treatment that is not covered by Medicare or workers’ compensation is not required to be reimbursed by the insurer, and therefore, must be paid by the insured patient himself. See, §627.736(5)(a)2, 3 and 5, Fla. Stat.
10. Because the New PIP Statute in effect since January 1, 2008 now contains mandatory and permissive language on the amounts that insurers pay for medical claims, it is important for the PIP insurer to clearly and unambiguously choose and identify its selected payment methodology within the PIP insurance policy itself. For example, if the PIP insurance policy does not clearly identify the PIP insurer’s chosen payment methodology, neither the PIP insured nor his health care providers are in any position to know the extent of health care services that are covered by the PIP insurance policy or the maximum amount that the health care provider can expect to recover for rendering services to the PIP insured. As another example, an insured whose insurance policy states he is entitled to have his medical expenses paid at 80% of the “reasonable” amount, will naturally have a broader array of available health care options (such as a Harvard trained surgeon or a state-of-the-art medical facility), than will another insured who is merely entitled to have his medical expenses paid based on the much lower Medicare rates. In that example, the second hypothetical insured would only be able to receive treatment from a health care provider that is willing to accept the much lower payment. Thus, if the insurance policy limits the amount of PIP benefits that the insurer will pay for particular types of health care services, the insured’s access to those types of health care services will likewise become limited. Consequently, the PIP policy’s explanation of how the insurer will pay claims for medical benefits clearly affects: (a) the value of the PIP insurance policy, (b) the type, quality, and amount of medical services that the PIP insured can receive from his health care provider pursuant to that PIP insurance policy, and (c) the health care provider’s billing practices for services rendered to PIP insureds.
Applicable Insurance Policy Provisions
11. In this case, the MRI Provider alleges that the insurance policies were issued, that the auto accidents occurred, and that the health care services were provided, after the January 1, 2008 effective date of the New PIP Statute.2 Further, the policies expressly describe the Insurance Company’s methodology for paying medical benefit claims as follows:
“Personal injury protection benefits consist of. . . Medical Expenses. 80% of reasonable expenses. . . .”
See, First Amended Complaints at ¶38 and Exhibit B; Answer at ¶38.
12. Thus, according to the above-quoted “Personal Injury Protection Coverage” provision of the Insurance Company’s own PIP insurance policy, the Insurance Company has expressly agreed to pay PIP claims at “80% of reasonable expenses,” which is the same methodology described in Section 627.736(1)a and (5)(a)1, Florida Statutes (2008) and not the permissive methodology described in Section 736.(5)(a)2a through f, Florida Statutes (2008).
13. Further, “Part F . . .Changes. . .B,” at p. 23 of the insurance contract specifically states, “This policy, your Declarations page and endorsements issued by us to this policy contain all the agreements between you and us. Its terms may not be changed or waived except by endorsement issued by us.” Conspicuously absent is any amendment or endorsement to the insurance policy changing the PIP benefit payment method from “80% of reasonable expenses” to “80% of 200% of the applicable Medicare Part B fee schedule, or 80% of the maximum reimbursable allowance under workers’ compensation if the services are not reimbursable under Medicare Part B,” or in any other way availing the Insurance Company of the alternative permissive methodology of Section 627.736(5)(a)2-5, Florida Statutes (2008).
14. Notwithstanding the above-quoted provisions of the PIP insurance policy, the Insurance Company processed and paid the MRI Provider’s claims according to the lower permissive fee schedule rates described in Section 627.736(5)(a)2.f, Florida Statutes (2008), without amending its PIP insurance policies and issuing endorsements to insureds identifying an intent to pay PIP claims for medical benefits according to those lower rates. See, Stipulation of Facts at ¶9; See, First Amended Complaints at ¶38 and Exhibit B; Answer at ¶38.
Legal Analysis
15. In State Farm Florida Ins. Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009), the Fifth District considered whether an insurance company was obligated by its homeowners’ insurance policy to pay for sinkhole repairs. Notwithstanding contrary language in its policy, the insurance company contended that it was authorized by Section 627.707(5)(b), Florida Statutes (2007) to withhold the funds until the insured homeowners actually contracted for the repairs. The Fifth District disagreed, and held that the statutory language was “permissive, not mandatory” and as such, “the policy language that requires payment . . . is not in conflict with the statute and is binding on the parties to the insurance contract.” Nichols, 21 So.3d at 905 (emph. added).
16. An insurance company is not precluded from offering greater coverage than that required by statute. Universal Underwriters Ins. Co. v. Morrison, 574 So. 2d 1063, 1065 (Fla. 1990); Sturgis v. Fortune Ins. Co., 475 So.2d 1272, 1273-74 (Fla.2d DCA 1985). See also, Wright v. Auto-Owners Ins. Co., 739 So.2d 180, 181 (Fla.2d DCA 1999) (policy provision requiring payment in accordance with the PIP statute should not be construed to limit coverage to minimum amount authorized by the PIP statute). These cases are consistent with the result reached in Nichols, because they confirm that when the insurance policy provides greater coverage than required by statute, the terms of the policy will control.
17. As in Nichols, the insurance policy in this case expressly states that the Insurance Company will pay for claims pursuant to a particular methodology (i.e., by paying 80% of the reasonable amount). That “reasonable amount” methodology corresponds to the mandatory language in subsection (1)(a) of the New PIP Statute. Because the New PIP Statute also states that a PIP insurer “may” apply the new fee schedule listed subsection (5)(a)2, that provision is “permissive, not mandatory,” and the policy language that requires payment in accordance with the reasonable amount methodology specified in subsection (1)(a) of the New PIP Statute “is not in conflict with the [permissive methodology set forth in the new] statute and is binding on the parties to the insurance contract.” Nichols, 21 So.3d at 905. See also, Morrison; Sturgis; Wright. If the Insurance Company wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in its insurance policy, so that the insured patient and his health care providers would be aware of it. Dr. Robert S. Schwartz, DC, PA, a/a/o Merari Buitrago v. United Auto. Ins. Co., Case No. 08006654COCE50, “Modified Order Denying Defendant’s Motion to Amend Final Judgment” at ¶¶ 14-15 (Fla. Broward County Ct., Aug. 19, 2009) (if insurer chooses to pay at 200% of Medicare then insurer must “take affirmative steps to take advantage of this change by expressing this clear intent in its policy of insurance so as to place their insureds on notice”). See also, Maryland Cas. Co. v. Murphy, 342 So.2d 1051, 1052 (Fla. 3d DCA 1977) (in order to rely on statutory provision allowing insurance company to prohibit assignment of benefits, insurance company was required to include a provision to that effect in its insurance policy).
18. Several courts have applied these same principles to hold that the mandatory provisions of Section 627.736(1)(a) and (5)(a)1 and the insurer’s own insurance policy language supersede the mere permissive fee schedule provisions of Section 627.736(5)(a)2. See, e.g., Dr. Robert S. Schwartz, DC, PA, a/a/o Merari Buitrago, supra; Davie Health & Rehabilitation, Inc., a/a/o Yirra Torres v. 21st Century Insurance, Case No. 08-19708COCE50, “Order on Plaintiff and Defendant’s Cross Motions for Summary Judgment” (Fla. Broward County Ct., Feb. 22, 2010); Milo Diagnostic Center, Inc. a/a/o Ariel Perez v. Peak Property & Casualty Insurance Corp., Case No. 09-005579SP(04), “Order on Plaintiff’s Motion for Summary Judgment on Defendant’s Fee Schedule Affirmative Defenses” (Fla. Miami-Dade County Ct. March 2, 2010); National Nuclear Center, Inc., a/a/o Patricia Colditz-Ottley v. USAA Casualty Insurance Co., “Order Granting Plaintiff’s Amended Motion for Final Summary Judgment” (Fla. Broward County Ct. Nov. 12, 2009); Professional Medical Group, Inc. a/a/o Rocio Espinosa v. GEICO General Insurance Co., Case No. 09-5505CC226(4), “Order on Plaintiff’s Motion for Summary Judgment, etc.” (Fla. Miami-Dade County Ct. Feb. 25, 2010); The Personal Injury Clinic a/a/o Yudith Montero v. Mercury Insurance Company of Florida, Case No. 09-1149CC21 (Fla. Miami-Dade County Ct. March 2, 2010).
19. The Insurance Company essentially contends that the “reasonable” amount test of the former version of Section 627.736(5)(a) is now replaced, substituted, clarified, or defined by the permissive fee schedule of the new version of Section 627.736(5)(a)2.a-f. This Court disagrees. The exact same language of the former Section 627.736(5)(a), instructing how a reasonable amount is determined, is still present in the new Section 627.736(5)(a)1. See, Explorer Insurance Company v. Physicians Group, LLC, 16 Fla. L. Weekly Supp. 317, 318 (Fla. 13th Jud. Cir. Ct. Jan. 21, 2009) (Circuit Judge James M. Barton, II) (reasonable amount “may be proved through the elements described in . . . §627.736(5)(a) . . ., rather than based on the permissive fee schedule”, and Insurance Company erroneously contended that the new permissive fee schedule provision “clarified the reasonable amount”). Adopting the Insurance Company’s argument would essentially render subsections (1)(a) and (5)(a)1 meaningless, in violation of well-settled principles of statutory construction. See, Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla. 2008) (court declined to adopt interpretation of formula in one subsection of the worker’s compensation statute that would rendered meaningless a reasonable amount provision in another subsection of that same statute).
20. In this regard, it is very important to note that Section 627.736(5)(a)5 contains the following additional critical implication of the insurer’s use of the permissive fee schedule:
5. If an insurer limits payment as authorized by subparagraph [(5)(a)]2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
(Emph. added). If the permissive fee schedule is truly intended to establish a new definition for the reasonable amount, as the Insurance Company suggests, then that permissive fee schedule would also apply equally to amounts covered by co-insurance and amounts due after PIP benefits are exhausted. Instead, subsection (5)(a)5 expressly permits the health care provider to seek payment beyond the permissive fee schedule rates from co-insurance and from an insured patient who has exhausted the policy limits of his PIP coverage.
21. Under Section 627.736(5)(a)1, health care providers have an obligation to bill a reasonable amount, which does not exceed their customary charges. The health care providers are not required to bill according to any fee schedule. Florida law recognizes that health care providers as intended beneficiaries of insurance contracts. See, e.g., Foundation Health et al. v. Westside EKG Associates, 944 So.2d 188, 197 (Fla. 2006). Moreover, a health care provider who seeks payment pursuant to a valid assignment of benefits (as in this case), stands in the shoes of the insured. See, e.g., Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446, 447 (Fla. 2d DCA 2003). Consequently, if the Insurance Company wants to pay the lower rates established under the permissive fee schedule of Section 627.736(5)(a)2.a-f, then the insured patient and his health care provider should be made aware of that fact by clear and unambiguous provisions set forth in the insurance policy, which the Insurance Company drafted and for which the insured bargained and paid premiums which correspond to the type and level of coverage and benefits provided by that policy. In this case, the insurance policy expressly states that the Insurance Company agrees to pay for health care services at 80% of the reasonable amount.
22. To the extent, if any, that the subject insurance policy contains any provisions which may arguably attempt to reference the permissive fee schedule provisions of Section 627.736(5)(a)2-5, this Court finds that such provisions are ambiguous and in conflict with the clear and unambiguous provision of the insurance policy which states that medical expenses will be paid using the “80% of reasonable expenses” method. Such ambiguities and conflicts must be construed against the Insurance Company, as the drafter of the insurance policy. Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla. 1980) (“Generally, ambiguities are construed against the drafter of the instrument”).
23. Accordingly, this Court concludes that the mandatory provisions of Section 627.736(1)(a) and (5)(a)1 and the “reasonable” amount methodology described in the insurance policy control and supersede the mere permissive fee schedule provisions of Section 627.736(5)(a)2.Damages
24. Aside from its reliance on the permissive fee schedule provisions of Section 627.736(5)(a)2, the Insurance Company waives in ¶11 of the parties’ stipulations, all other defenses to payment. Consequently, the Court finds that, pursuant to the mandatory provisions of Section 627.736(1)(a) and (5)(a)1 and the payment methodology expressly described in the insurance policy, the MRI Provider is entitled to recover damages based on 80% of the reasonable amounts, as alleged in the complaints, and judgment is hereby entered in favor of the MRI Provider against the Insurance Company.
25. With respect to the services provided to Craig Volpe, the MRI Provider shall recover damages from the Insurance Company in the amount of $1,404.10 plus interest, which shall bear interest at the rate of 6% per year, for which let execution issue.
26. With respect to the services provided to Chase Atari, the MRI Provider shall recover damages from the Insurance Company in the amount of $1,128.06, which shall bear interest at the rate of 6% per year, for which let execution issue.
27. The Court hereby reserves jurisdiction to consider any claims for attorneys’ fees and costs.
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1The non-emergency, non-hospital MRI services rendered to the insured patients in this case are the type of “other medical services, supplies, and care” described by Section 627.736(5)(a)2.f.
2See, First Amended Complaints at ¶¶ 9-12, 37. Because it is undisputed that the subject insurance policies were issued after January 1, 2008, the New PIP Statute applies and this case does not involve the retroactive application issue addressed in cases such as Menendez v. Progressive Express Ins. Co., Inc., — So.3d — , 2010 WL 1069785 (Fla.Apr. 22, 2010); Explorer Ins. Co. v. Physicians Group, LLC, 16 Fla. Law Weekly Supp. 317, 318 (Fla. 13th Cir. Ct. Jan. 21, 2009); Physicians Group, LLC, a/a/o David Kelley v. Geico Indem. Co., 16 Fla. L. Weekly Supp. 963a (Fla. Hillsborough County Ct. July 28, 2009) (Judge Paul T. Jeske); Physicians Group, LLC, a/a/o Paul Androski v. Geico Indemnity Co., 15 Fla. Law Weekly Supp. 1207 (Fla. Sarasota County Ct. Oct. 22, 2008); Forrest Hill Injury Center, Inc. v. Progressive Express Ins. Co., 16 Fla. L. Weekly Supp. 463, 464 (Fla. Palm Beach County Ct. Mar. 16, 2009); and Boca Raton Ortho. Group, Inc. v. Geico General Ins. Co., 16 Fla. L. Weekly Supp. 677, 678 (Fla. Palm Beach County Ct. May 12, 2009).
